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Civil Rights

Appeals Court issues ‘Catch-22’ Ruling for NSA Spying Lawsuit

— August 30, 2015

The 2-1 panel ruling did not dismiss the case outright, kicking the case back to lower federal court for further deliberation. The ruling, however, severely weakens the validity of the lawsuit and likely for similar cases of privacy invasion by the spying program in the future.

The recent legal challenges to the National Security Agency’s (NSA) domestic spying program took a major hit on Friday when a three-judge panel from the U.S. Court of Appeals for the D. C. Circuit ruled that consumer advocate, lawyer, and founder of Freedom Watch, Larry Klayman, did not prove standing in a lawsuit against the government’s controversial program. The appeals panel decided that Klayman failed to prove that the NSA actually spied on him, a prerequisite for the case to have standing. Although Congress passed the USA Freedom Act in June, a modified justification for the domestic spying program, Section 215 of the Patriot Act remains the legal backing for the operation until changes are finalized by December. Unlike the current system, which houses large data-collection databases at NSA facilities, the new law puts the data in the custody of the telecommunications providers, with the NSA requiring a court order to access a more limited selection of information. The appeals panel also lifted a temporary injunction against the program that had been in place since 2013.

The 2-1 panel ruling did not dismiss the case outright, kicking the case back to lower federal court for further deliberation. The ruling, however, severely weakens the validity of the lawsuit and likely for similar cases of privacy invasion by the spying program in the future. Klayman, a D.C. lawyer known for his outspoken libertarian views, filed the suit after former federal contractor Edward Snowden revealed details of the domestic spying program in 2013. D.C. Federal Judge Richard Leon ruled that the NSA’s data collection program was “almost-Orwellian” and “at best, the stuff of science fiction.” Leon wrote in his opinion that Klayman “demonstrated a substantial likelihood of success” in proving that his Fourth Amendment rights were violated by the spying program, which he also ruled unconstitutional. Although Leon put his ruling on hold to allow the government time to formulate an appeal, the terse language in his ruling certainly gave the impression that the spying program was a breach on personal privacy.

The appeals panel, however, noted that the only company that was revealed to have collected NSA domestic spying data was Verizon’s Business Network Services, and not Verizon Wireless, for which Klayman is a customer. Klayman believed that he and millions of other Verizon Wireless customers continued to have their Fourth Amendment rights violated following Snowden’s disclosure. Judge Janice Brown wrote in her majority opinion that “In order to establish his standing to sue, a plaintiff must show he has suffered a ‘concrete and particularized’ injury. In other words, plaintiffs here must show their own metadata was collected by the government…the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.” For his part, Klayman was angered by the appeals court delay in the matter, responding to the appeals ruling, saying “An ­ill-informed first-year law student could have written this within one day. Why did you wait nearly two years after Leon issued his decision? You delayed getting to the issues. During that time the constitutional rights of Americans continue to be violated.”

Despite criticizing the justification for the law suit, the panel ruling was merely on procedural grounds, and did not directly address the constitutionality of the domestic spying program in itself. The NSA has claimed that virtually all wireless companies were fair game to the domestic spying program despite Snowden’s limited disclosure. In May, a three-judge panel from the 2nd Circuit Appeals Court in May called the NSA program “unprecedented and unwarranted,” calling the NSA’s justification illegal, however also failing to call the law unconstitutional. The 2nd Circuit will begin hearing arguments from the American Civil Liberties Union (ACLU) next week, requesting that the NSA program be shut down now, and not within the six-month timeframe outlined by the legislation passed in June. For his part, Klayman has stated that he does not completely reject the NSA program, saying “Nobody’s against doing surveillance of terrorists. What we’re saying is get a warrant.”

Even in the wake of the May ruling, and legislation to address the privacy concerns, the appeals ruling sets up a difficult path forward for Klayman and anyone else who claims that their Fourth Amendment rights are being infringed upon. Despite ruling against Klayman, Judge Brown noted the government’s advantage in any case, that they have the right to claim secrecy for the sake of security interests, writing “Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information.”As attorney for the Electronic Privacy Information Center (EPIC) Alan Butler observes, “This case is the example of the Kafkaesque nightmare that plaintiffs trying to challenge unlawful surveillance find themselves in. The problem of blanket government secrecy is that you can’t get a court to answer the question of whether a government’s activities are illegal until you prove something that the government won’t allow you to prove.” Although the Catch-22 ruling may not ultimately affect the constitutionality of the program in general, nor does it alter the planned reforms to the program, it will certainly make it more difficult to prove that the NSA is acting in accordance to the guidelines.



NBC News – Pete Williams

Washington Post – Ellen Nakashima

Wired – Andy Greenberg

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