Federal Judge Bars NSA From Collecting Phone Records; Possible Far-Reaching Effects
NSA was barred as part of its spying program from collecting any phone records for two of the five plaintiffs in a case. U.S. District Court for the District of Columbia Judge Richard Leon ruled again Monday for those plaintiffs in Klayman v. Obama. Leon’s ruling was 20 days before the NSA is scheduled to cease its classified bulk telephony metadata program. Still, it could have far-reaching implications, privacy advocates told us.
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In December 2013, Leon ruled against the NSA program, but stayed his decision pending an appeals process that he hoped “would move expeditiously,” he wrote in his 43-page opinion. “However, because it has been almost two years since I first found that the NSA’s bulk telephony metadata program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm … I will not [stay the order] today.” Leon heard oral argument Oct. 8 after the plaintiffs filed a renewed motion for preliminary injunction, which said the NSA program was unconstitutional and should be terminated.
The ruling bars NSA from collecting phone metadata of the Verizon Business Network Services accounts of J.J. Little and his law firm, J.J. Little & Associates, two of the plaintiffs in the case. It also said the government must “segregate any such metadata” that has already been collected.
Larry Klayman, chairman of Freedom Watch and a former Justice Department prosecutor, Charles Strange and Mary Ann Strange were the other three plaintiffs. Leon said those three had no standing to proceed in the case because they “have not shown a substantial likelihood that their telephony metadata was collected pursuant to the [NSA] program and therefore are not entitled to a preliminary injunction.”
The USA Freedom Act, which was enacted June 2, specifically prohibited bulk collection of such records, but gave the NSA 180 days to continue operating the bulk telephony metadata collection program until Nov. 29. The NSA has said that it was authorized to operate the program under Section 215 of the USA Patriot Act.
“It’s a tremendous victory for the American people,” Klayman said in an interview. Although the ruling is limited to preventing the collection of records related to J.J. Little and his law firm, Klayman said it has “general applicability to all Americans” because Leon’s ruling creates a precedent and “transcends” the bulk collection program.
The NSA declined to comment and referred a media inquiry to the Justice Department. DOJ didn't comment.
“One of the important effects of this ruling is something of a warning to implement USA Freedom Act appropriately,” Harley Geiger, senior counsel with the Center for Democracy & Technology, said in an interview. “The judge indicated that it violated the law and I think this should send a message not to replace the bulk collection program with another program that does the same thing.”
Geiger said phone companies have to turn over their call records in large quantities to the NSA every day and he isn't sure how the companies can take out the call data of those two plaintiffs that the agency is now barred from collecting. "The legal precedent is what is important there. [Leon] applied it to the two plaintiffs but many people around the country are swept up in this program," he said. Geiger said oversight is still a concern for the next NSA program. He said the USA Freedom Act does put into place some more oversight in terms of Foreign Intelligence Surveillance Court transparency -- the court that decides to approve or strike down surveillance requests -- since many of FISC rulings were classified. "So, hopefully if the law is implemented faithfully ... then the [FISC] opinion approving that surveillance would be made public to some extent," said Geiger. "That is a new accountability measure."
David Greene, civil liberties director with the Electronic Frontier Foundation, said in a blog post that Leon’s “opinion and his refutation of the government’s arguments, which are almost identical to the government’s arguments in other mass surveillance cases, should be broadly influential in ongoing and future challenges to the NSA's suspicionless spying.”