Federal Judge Lauds But Dismisses High-Profile Lawsuit Against NSA Surveillance

A federal judge offered praise but dismissed a high-profile and multi-year lawsuit against National Security Agency surveillance programs.

In 2013, following disclosures from NSA whistleblower Edward Snowden, attorney Larry Klayman, founder of Freedom Watch, and Charles Strange filed a lawsuit seeking a preliminary injunction barring the government from collecting their phone records through a program operated under a section of the PATRIOT Act.

Judge Richard Leon of United States District Court of the District of Columbia issued a preliminary injunction in December 2013 and described the technology used for the NSA program as “almost Orwellian.” But twice, in 2014 and 2015, the federal appeals court in the same circuit sent the lawsuit back to the district court, asserting plaintiffs did not meet the “burden of proof” necessary to sue. Each time the appeals court avoided key constitutional issues.

“While the zeal and vigilance with which plaintiffs have sought to protect our constitutional rights is indeed laudable, this court, in the final analysis, has no choice but to dismiss these cases for plaintiffs’ failure to demonstrate the necessary jurisdiction to proceed,” Leon stated [PDF]. “I do so today, however, well aware that I will not be the last district judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror.”

“Hopefully, by the time these issues are next joined, our Supreme Court will have had the opportunity to provide us with further guidance on the parameters of our privacy interests in this era of ever-increasing electronic communication. If not, concerned citizens such as these will continue to shoulder the heavy yoke that vigilance to our constitutional liberties surely requires.”

Leon agreed with the government that the passage of the USA FREEDOM Act in June 2015—which was intended to address concerns over bulk metadata collection from phone records—meant the plaintiffs no longer had a case or controversy. He found little merit to arguments that the USA FREEDOM Act is riddled with “loopholes” and that the statute “in many ways actually expands the wide-scaled unconstitutional surveillance.”

To the argument from Klayman and Strange that they should be able to engage in discovery to show their metadata was collected under the NSA program, the judge maintained they must have some facts already before discovery could be granted. They could not seek discovery to prove they were targeted.

The plaintiffs also sought expungement of their records so the government no longer held their personal data. The judge did not think they had any standing to pursue this claim.

Furthermore, Klayman and Strange wanted the NSA to stop collecting their personal Internet metadata under a provision of the Foreign Intelligence Surveillance Act known as the “pen-trap provision.” But the government claims it discontinued the program in 2011 before the lawsuit was filed, and as such, the judge concluded they had no case against the government.

In regards to the PRISM program, the surveillance program that involved the NSA collecting in real-time the communications from companies like Facebook, Google, Microsoft, Skype and Yahoo, Leon invoked the Supreme Court’s decision, Clapper v. Amnesty International USA, and said because plaintiffs cannot prove their communications were targeted, they have no standing to sue.

It is unclear whether Klayman plans to appeal. But he told Law360, despite the fact Leon sided with his case in the past, “he did the wrong thing” by dismissing the lawsuit.

“You can’t say legislation means everything is copacetic. Because they’ve been violating prior legislation—lawless,” Klayman said. “There is a lot of pressure on these judges to rubber stamp these things. The question is, did he lose his nerve?”

While there are far fewer cases against NSA surveillance since the USA FREEDOM Act, the ACLU and Electronic Frontier Foundation still have cases moving through the courts or awaiting a final decision. Most of these stemmed from what the public learned as a result of Snowden’s whistleblowing.