A federal appeals court has rejected a high-profile challenge to the ongoing mass collection of US phone data by the National Security Agency without ruling on the merits of bulk surveillance.



Judges for the District of Columbia court of appeals found that the man who brought the case, conservative lawyer Larry Klayman, could not prove that his particular cellphone records had been swept up in NSA dragnets.

The ruling reversed an injunction from a lower court on the phone records surveillance program – but only in a technical sense, as the injunction never actually went into force.

But the judges’ decision does not impact that of a different federal appeals court, which in May found that the bulk phone records collection lacked a foundation in law. That ruling, by the second circuit court of appeals, added momentum to a congressional rollback of the surveillance program that has yet to take effect.

In their ruling, judges Janice Rogers Brown, Stephen Williams and David Sentelle wrote: “The record, as it stands in the very early stages of this litigation, leaves some doubt about whether plaintiffs’ own metadata was ever collected.”

Klayman shot back, telling the Guardian the judges were “intellectually dishonest” as the widespread nature of NSA bulk phone records collection has been on display for more than two years since whistleblower Edward Snowden’s surveillance disclosures.

“It’s outrageous this court would allow the constitutional rights of Americans to be trampled upon,” Klayman said. “The court has become the tool of the establishment.”

The case now returns to a lower federal judge, Richard Leon, to establish if Klayman’s call records appear in NSA databases. The judges acknowledged that the highly classified nature of the program makes it difficult, if not impossible, for Klayman to establish that the NSA collected his records.

“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,” the judges wrote.

Klayman’s case gained national recognition after Leon ruled in December 2013 that the NSA surveillance was borderline unconstitutional and “almost Orwellian” in scope. At the time, Leon’s ruling was the first to examine the program in a non-secret court.

The ruling on Friday neither addressed the underlying legality of the NSA surveillance nor ended Klayman’s suit outright, though Sentelle, in a separate opinion, endorsed that outcome. The judges distinguished it from the case ruled upon in May by their second circuit colleagues, which was brought by the American Civil Liberties Union (ACLU) and which did not rely on a specific showing of someone’s records being collected.

Alex Abdo, an attorney for ACLU, which supports Klayman’s suit, dismissed the relevance of Friday’s ruling.

“Today’s ruling is merely a procedural decision that does not address the constitutionality or legality of the NSA surveillance program,” Abdo said.

“Only one appeals court has weighed in on the merits of the program, and it ruled the government’s collection of Americans’ call records was not only unlawful but ‘unprecedented and unwarranted’. And next week that appeals court will hear argument on the ACLU’s request that the NSA be required to end bulk collection.”

Before the Guardian revealed the existence of the bulk US phone records collection in June 2013, thanks to Snowden, legal challenges to warrantless NSA surveillance foundered for the reason the judges cited on Friday: an inability, thanks to government secrecy, for would-be challengers to prove their specific data had been collected.



After Snowden showed that the NSA swept up millions of US phone records daily in a program meant to throw a comprehensive blanket over US-transiting call data, privacy attorneys thought the Obama administration would not be able to lodge that defense anymore.

But the NSA’s statements, in court and in the press, that the phone records program never achieved full comprehensiveness breathed new life into the government’s legal strategy.

The judges addressed the secrecy concerns in Klayman’s case by calling the classification a “form of regulation” over what “the citizen may know”, a reference to a famous disquisition on secrecy by former senator Daniel Patrick Moynihan.

“Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate,” the judges wrote.

“Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions.”

Although Congress in June barred the NSA from collecting US phone data in bulk, the ban does not take effect until December. Privacy advocates have warned that the replacement surveillance powers Congress created are sufficiently broad to permit the NSA or partner agencies to reconstitute much of the barred surveillance in different forms.