The most successful case thus far against the National Security Agency’s dragnet collection of U.S. phone records returns to court Tuesday. Larry Klayman, the conservative legal activist who won a preliminary injunction against the NSA collection Dec. 16, will ask a three-judge panel to affirm U.S. District Judge Richard Leon’s finding that the agency’s “almost Orwellian” program “almost certainly” violates the Fourth Amendment. The Department of Justice is appealing Leon’s ruling, as is Klayman, who wants the appeals court judges to consider First and Fifth Amendment arguments that Leon did not address. Klayman will be joined at the U.S. Court of Appeals for the D.C. Circuit by representatives from privacy advocates the American Civil Liberties Union, the Electronic Frontier Foundation and the National Security Center.

Klayman will have 15 minutes to present his case. The court also granted 10 minutes to attorney Cindy Cohn, who is representing the ACLU and the EFF - which have their own lawsuits against the program - and to the Center for National Security Studies.

The panel’s judges are all Republican appointees. David Sentelle and Stephen Williams were appointed by President Ronald Reagan. Janice Rogers Brown was appointed by President George W. Bush.

The court’s composition may be cause for optimism among mass surveillance foes.

In June Sentelle authored a decision for a three-judge panel of the U.S. Court of Appeals for the 11th Circuit that found cellphone location data is protected by the Fourth Amendment, and that police need a warrant before acquiring it. That decision is under appeal, but could significantly expand cellphone privacy rights.

Brown, meanwhile, is reportedly a fan of writer Ayn Rand, who sharply advocated for individual rights. At a Federalist Society gathering, Brown warned about government overreach: "If we can invoke no ultimate limits on the power of government, a democracy is inevitably transformed into a kleptocracy - a license to steal, a warrant for oppression."

The political and legal landscape has shifted significantly since November 2013, when Klayman successfully pleaded with Leon to rule against the NSA program, likening President Barack Obama to King George III and warning the judge an insurrection might occur if the court didn’t step in.

After months of vigorously defending the NSA’s practices, Obama reversed himself earlier this year and asked Congress to terminate the phone record program. The House of Representatives passed legislation in May that would do so, but its fate in the Senate is unclear.

Obama has not exercised his power to unilaterally end the program and his administration’s attorneys continue to defend it, despite two executive branch review panels finding has minimal value for catching terrorists.

“The government has really backed off on its arguments about how important this program is,” says Cohn, legal director of the EFF. “Now they basically just say it’s reasonably helpful, which to me is not a good reason to violate everybody’s privacy.”

Cohn says if Department of Justice attorneys claim the NSA program is crucial to national security, “we will definitely point out that not only President Obama, but also his two hand-picked panels have basically said the program hasn’t shown any ability to protect us from terrorist attacks.”

Following Leon’s ruling, Obama announced in January NSA analysts will now need case-by-case approval from the Foreign Intelligence Surveillance Court, except for in emergency cases, before they search the phone database for records relating to suspected terrorists or foreign agents. He also limited NSA analysts to two “hops” - down from three - through a suspect’s contacts.

Klayman says the government has not submitted information on the changes into the court record. He says he plans to push back aggressively if government attorneys claim the voluntary reforms are relevant.

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The hop limitation is irrelevant because analysts could simply select a contact’s contact and accomplish the same reach, he says, and the government’s claims that it’s now seeking case-by-case approval is dubious.

“I’m going to say straight-up to the court the government simply cannot be believed,” Klayman says. “There’s a pattern of lying, including the Director of National Intelligence [James Clapper] lying under oath to Congress. The fact they say it’s true makes it less than likely to be true.”

In addition to the shifting political winds since the case last appeared in court, the U.S. Supreme Court issued a landmark cellphone privacy ruling in June. In Riley v. California, the high court found that police must generally acquire warrants before searching the phones of people under arrest.

Klayman says the Riley decision sets a new standard for privacy rights and ties the hands of the appeals court judges.

Government attorneys say the phone data program is constitutional because of the Supreme Court’s 1979 Smith v. Maryland decision, which found a criminal defendant did not have a reasonable expectation of privacy over a list of numbers he dialed in a two-day period. Bush and Obama administration lawyers persuaded judges on the secret Foreign Intelligence Surveillance Court that decision meant the government could seize and store the phone records of every American for five years.

Cohn says Riley, at a minimum, shows courts should not be constrained by decades-old rulings issued before the dawn of cell phones and other electronic communication devices.

“I don’t think it overrules Smith v. Maryland, but it demonstrates how Smith v. Maryland isn’t the right case all the same,” she says. “I don’t think the tiny little box that was created by Smith v. Maryland answers the question about how we live today.”

Klayman’s case is one of three challenges against the NSA program pending before appeals courts. The other cases were dismissed previously by district court judges.

The U.S. Court of Appeals for the Second Circuit heard arguments in September in an appeal from the ACLU, which primarily argues the program exceeds the statutory authority granted by Section 215 of the Patriot Act. An appeal from Idaho nurse Anna Smith, supported by the ACLU and EFF, will be heard Dec. 8 in Seattle by a panel of the U.S. Court of Appeals for the Ninth Circuit.

The U.S. Supreme Court is expected to have the last word on the program - exposed in June 2013 by exiled whistleblower Edward Snowden - regardless of what the appeals courts decide.







