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Go Ahead With Your Bulk Data Collection, D.C. Cir Tells NSA

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By Casey C. Sullivan, Esq. on August 31, 2015 6:57 AM

The NSA can continue its controversial mass phone metadata collection now, after the D.C. Circuit threw out a lower court injunction against the program on Friday. The D.C. Circuit panel found that the plaintiff, conservative lawyer Larry Klayman, had not shown a likelihood that he would succeed on the merits sufficient enough to support a preliminary injunction.

The ruling is a rare win for the NSA these days. It comes two years after Edward Snowden exposed the agency's secret, massive data collection program and on the heels of a Second Circuit ruling that such collection is not lawful. The program itself has not been renewed by Congress and is set to expire in upcoming months -- but, as the D.C. Circuit notes, it's not gone yet.

Yeah, It's a Massive Program, But Were You Covered?

Klayman had alleged that the NSA's bulk data collection program was an unconstitutional search in violation of the Fourth Amendment. His arguments convinced the D.C. district court, which in 2013 granted a preliminary injunction against the program, but stayed it pending appeal. Judge Richard Leon wrote:

I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.

The circuit court was less convinced. The panel tossed the injunction in a per curium decision, with two separate opinions by Judges Brown and Williams explaining the court's logic. In Judge Brown's view, Klayman "barely" had standing to sue since he had not sufficiently shown that his metadata was actually collected. Sure, it was pretty likely, Brown said, but not certain and that uncertainty undermined the need for a preliminary injunction.

Judge Williams echoes similar concerns, saying Klayman has no actual knowledge that he was the subject of any surveillance, though he questioned whether Klayman had standing at all. Both Judges agreed that the case should be remanded for further inquiry into Klayman's standing.

An Uncertain Future for NSA Surveillance

Klayman's case could drag on, but the NSA bulk data collection program is already on its last legs. Indeed, the per curium opinion was dedicated largely to explaining why the suit wasn't moot. The sections of the PATRIOT Act supposedly justifying the collection (the Second Circuit found that they did not, in fact, allow for the program) expired on June 1st. Congress subsequently passed legislation to allow the program to continue for 180 days, until the new USA Freedom Act takes effect. That Act significantly alters the NSA's bulk data collection, but not until the end of the year.

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