Today, a federal appeals court vacated a preliminary injunction against the National Security Agency’s phone records surveillance program, and the lawsuit was sent back to the lower court for further proceedings if appropriate [PDF].
The U.S. Court of Appeals for the District of Columbia Circuit did not rule on whether the program, largely exposed by NSA whistleblower Edward Snowden, was lawful or not. Rather, the court concluded that attorney Larry Klayman, founder of Freedom Watch, and Charles Strange, father of Michael Strange, an NSA cryptologist technician and Navy support personnel for SEAL Team VI who was killed in Afghanistan, had not shown proof they were “injured” or were targeted by the surveillance program.
Without specific evidence, the appeals court determined the plaintiffs had not met the burden of proof for a preliminary injunction.
District Court Judge Richard Leon issued a preliminary injunction in December 2013, when he ruled the technology used for the NSA program was “almost Orwellian.” The government appealed in July 2014.
The Justice Department focused on standing and argued the plaintiffs had not “established standing to sue” or shown “they would suffer irreparable harm absent preliminary relief.”
“There is no evidence that the government has ever collected any information about plaintiffs’ calls under the Section 215 telephony-metadata program,” government attorneys argued.
The appeals court found the following to be persuasive:
… Plaintiffs Klayman and Strange aver that they are subscribers of Verizon Wireless, but provide no evidence that the government has ever acquired any business records from that company under the Section 215 program. The district court relied on the fact that the government has acknowledged that, for several months in 2013, it collected business records containing telephony metadata from Verizon Business Network Services. But that is not the same entity as Verizon Wireless …
The order Snowden disclosed involved the collection of call detail records of subscribers to Verizon Business Network Services, not Verizon Wireless. Plaintiffs are not Business Network subscribers.
On August 20, the Electronic Frontier Foundation and American Civil Liberties Union submitted an amicus brief, which delved into larger and more substantive issues related to privacy and whether it is constitutional or lawful for the government to operate a bulk metadata collection program. The appeals court chose to ignore these arguments and decide in favor of the government on a narrow issue of whether plaintiffs had shown they were targeted or not.
The appeals court judges were divided on the issue of whether the plaintiffs had standing to pursue their lawsuit before the district court.
In a separate opinion, Judge Janice Rogers Brown wrote that she was not fully persuaded by the government and found plaintiffs had met the “bare requirements of standing.” Brown acknowledged the district court would determine whether to allow “limited discovery to explore jurisdictional facts,” which might be helpful to the case against the program.
However, troublingly, Brown offered a defense of government secrecy that is rather unnerving coming from a branch of government, which is supposed to check the power of the Executive Branch.
“Of course, I recognize that, in order for additional discovery to be meaningful, one of the obstacles plaintiffs must surmount is the government’s unwillingness to make public a secret program,” Brown stated. “It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information.”
Brown further opined, “Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not ‘what the citizen may do’ but instead ‘what the citizen may know.'” (Here, Brown quoted Senator Daniel Patrick Moynihan, who was a well-known skeptic of government secrecy.)
“Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate. Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions. In any event, our opinions do not comment on the propriety of whatever privileges the government may have occasion to assert,” Brown added.
Yet, Brown practically encouraged the government to defend its right to operate a secret bulk data surveillance program when Justice Department attorneys return to the district court.
For context, back in May, the Second U.S. Court of Appeals in New York ruled in a case brought by the ACLU that the phone records surveillance program was illegal.
“If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including e?mail and social media information) relating to all Americans,” the court declared [PDF]. “Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans.”
The ruling basically invalidated the government’s key rationale for maintaining any and all dragnet surveillance programs to fight the “War on Terrorism.”
Although the USA Freedom Act reformed some elements of the NSA surveillance program, the court acknowledged the plaintiffs still had a case. The ACLU will be before the appeals court next week to argue for a preliminary injunction in their case.