NSA Verizon Metadata Program Slammed by Court - Civil Rights Law - DC Circuit
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NSA Verizon Metadata Program Slammed by Court

The D.C. District Court ruled on Monday that the NSA's efforts in collecting phone metadata nationwide are most likely unconstitutional.

In Klayman v. Obama, the District Court Judge Richard J. Leon laid out a scathing, 68-page opinion outlining the myriad reasons why he believed a preliminary injunction was proper to block the NSA's phone surveillance -- largely because he agreed that Klayman was likely to succeed on the merits of his constitutional claims, reports The Washington Post.

Why is this district court decision so different than the past NSA cases?

Failed Attempts to Nail Down NSA

After current exile and Russian icicle Edward Snowden broke details about the NSA's programs to the world, we all learned a bit more about the NSA's plans with our phone metadata.

However, even before we knew that the NSA was being fed data by Verizon and Google, attempts had been made by those who suspected that something was up. In 2012, the D.C. Circuit affirmed that the NSA could legally stonewall Freedom of Information Act (FOIA) requests about their relation to Google and others with the Glomar response.

This lack of information was problematic for those trying to hack at the NSA's phone project in the courts, because the cases were being dismissed for lack of standing. Plaintiffs who wanted to sue for being surveilled upon were caught in a double bind; they couldn't keep their cases in court without sufficient information that proved the NSA spied on them, but the NSA wasn't obligated under FOIA or other authority to provide that evidence.

The Klayman court gives those hoping to strike down the programs as unconstitutional a ray of hope.

Standing for Constitutional Claims

Klayman and other plaintiffs started with a claim under the Administrative Procedure Act, which works really well when kvetching about the Department of Energy or Environmental Protection Agency, but not so much the NSA.

Although it's very possible that the NSA bulk collection of data far exceeds the "tangible things" authority granted by the Foreign Intelligence Surveillance Act (FISA), Congress' implied intent was for no court -- other than those set up by FISA -- to be involved in reviewing orders under the statute.

However, Judge Leon was quick to note that Article III courts could still review constitutional claims related to these surveillance orders, since there is no explicit barring of such review.

Snowden Leaks Make the Difference

Once the Klayman court reached the preliminary injunction analysis that calls for an evaluation of the case's constitutional merits, the distinction between this and prior cases becomes clear.

Judge Leon believes that Klayman and others are likely to succeed on the merits of their Fourth Amendment claims because, unlike in Clapper, there is now "strong evidence that, as Verizon customers, their telephone metadata has been collected for the last seven years." He was referring to the Snowden leaks.

Bottom Line

Whether the Snowden-leaked info via the Post was enough to convince Judge Leon of granting a preliminary injunction against the NSA is one, small thing. The constitutionality of the program has yet to be decided even at the district court level, and the D.C. Circuit Court has yet to hear the appeal of the preliminary hearing decision.

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