U.S. Wrongly Argues Verizon Wireless’ Participation In NSA Program Is Classified

In a challenge to the constitutionality of the National Security Agency’s phone records surveillance program, President Barack Obama’s administration claims whether Verizon Wireless participated in the program is a state secret. This is remarkable given there is irrefutable evidence from government documents of Verizon Wireless’ involvement in a similar challenge to this program.

The government submitted a filing in the United States District Court for the District of Columbia on September 15 [PDF]. Attorneys claim “new allegations regarding the asserted participation of Verizon Wireless” in the program “implicate matters of a classified nature.”

Though attorneys concede Verizon Business Network Services, Inc. was once a participant in the program—because NSA whistleblower Edward Snowden disclosed a copy of the April 25, 2013 order showing the company’s involvement, the government maintains the “identities of the carriers participating in the program, now, or at any other time, remain classified for reasons of national security.”

Government attorneys indicate their desire to invoke the “state secrets privilege” if plaintiffs are allowed discovery but, in the Ninth Circuit Court of Appeals, plaintiffs recently asked the court to “take judicial notice” of the fact that the National Security Division of the Justice Department acknowledged Verizon Wireless’ involvement in a filing to the Foreign Intelligence Surveillance Court [PDF].

The document was declassified and released on August 15 in response to a Freedom of Information Act lawsuit submitted by the New York Times.

“The government has claimed that ‘there is no evidence in the record that the government has acquired metadata from Verizon Wireless under the Section 215 program’ and that, as a Verizon Wireless customer, Plaintiff–Appellant therefore cannot demonstrate the government collected her records. However, the attached government filing and FISC court order demonstrate that the NSA has indeed collected phone records in bulk from Verizon Wireless under section 215,” according to the filing.

The challenge in which the government claims Verizon Wireless’ involvement is a state secret was brought in 2013 by attorney Larry Klayman, founder of Freedom Watch, and Charles Strange. They won a preliminary injunction in December 2013, when a federal judge ruled the technology used for the NSA program was “almost Orwellian.”

In July 2014, the government appealed the preliminary injunction, and a federal appeals court ruled in late August the plaintiffs did not meet the “burden of proof” for an injunction. The appeals court avoided key constitutional issues and sent the case back to the lower court for further proceedings. Klayman moved to add allegations related to Verizon Wireless, which were not in the initial challenge.

Anna Smith, an Idaho nurse, brought the challenge in the Ninth Circuit with the support of the American Civil Liberties Union and Electronic Frontier Foundation.

The declassified document showing Verizon Wireless’ involvement was filed to the Ninth Circuit appeals court six days prior to the suggestion to the D.C. court that the company’s involvement is a state secret. Attorneys would have been able to recognize their argument against the Klayman challenge was disingenuous, given the filing in the Smith challenge.

The fact there is proof in a government document of Verizon Wireless’ involvement is potentially huge for not just the Klayman challenge, but all current challenges to the NSA phone records surveillance program.

A key argument the appeals court relied upon to justify rescinding the preliminary injunction relied upon the claim that Klayman and Strange are Verizon Wireless subscribers, not Verizon Business Network Services subscribers. The government told the appeals court there was no proof the company had been part of the program so they should not be able to pursue the legal challenge, since they lack standing.

Now that plaintiffs in any challenge can prove Verizon Wireless’ involvement to a court, they can prove they were targets of surveillance. This makes it very difficult for the government to convince courts to dismiss cases brought by Verizon subscribers.

The government also loses the ability to invoke “state secrets,” as it has in a number of national security cases to prevent victims of civil liberties or human rights violations from having their day in court.

Unfortunately, even if the D.C. court does not permit the government to treat the participation of Verizon Wireless as a state secret, the government has another argument, which could greatly impact the outcome of cases.

The government argues the USA FREEDOM Act “will, as of November 29, 2015, prohibit the government from conducting” bulk collection. During a six-month transition before a “new framework of targeted telephony-metadata production,” Congress authorized the government to keep the phone records surveillance program going.

“The political branches thus judged that the sort of abrupt, immediate interference with the program that plaintiffs here seek through an injunction would be contrary to the public interest,” according to the government.

Courts have been susceptible to arguments suggesting Congress did not know the extent of the phone records surveillance program. But because legislation passed to restrict this program in some ways, courts may be persuaded not to grant injunctions and disrupt the program.