An appeals court granted the US government’s emergency request to allow the National Security Agency to keep collecting telephone metadata on Tuesday after a judge ruled that the program “likely violates the constitution”.

In a case brought by activist Larry Klayman, Washington DC district court judge Richard Leon ruled that the NSA must cease collecting the defendants’ information. Leon said he believed it was “substantially likely” that “the program is unlawful”, and that in that event, “the plaintiffs have suffered concrete harm traceable to the challenged program”.



The government filed a request for an emergency stay of the order, saying it believed it was likely to win on appeal. A different panel of judges in a similar case ruled in favor of the NSA in October. After Leon rejected the government’s demand for a stay US authorities appealed the rejection and received the stay from a panel of three others, David S Tatel, Patricia A Millett and Thomas B Griffith.

The government said if a stay was not issued, the order ran the risk of shutting down the whole bulk collection program. “Immediate compliance with the district court’s injunction would effectively require the abrupt termination of that important counter-intelligence program,” counsel for the government said.

As a result of the ruling, the NSA must also quarantine the data it already has related to JJ Little or his law firm, JJ Little and Associates. The firm are co-plaintiffs with Klayman, a conservative activist attorney and founder of Freedom Watch, and Charles and Mary Ann Strange.



The bulk metadata collection program, first made public by NSA whistleblower Edward Snowden, is due to end on 29 November. But the judge said that a largely symbolic ruling was important given the high stakes. Klayman v Obama would not, he said, “be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our constitution in an age of evolving technological wizardry”.



Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center, said: “It may seem symbolic, but it isn’t, because there is tangible harm … There would be new data collected and stored for five years, and that’s not nothing.”

The ruling, said Gotein, “says you can’t just sort-of comply with the law, which is what the government had been saying it was going to do. There’s not wiggle room in the constitution.”

Snowden called the ruling “historic” in a message posted on Twitter.



Edward Snowden (@Snowden) In historic decision, US Court finds @NSAGov spying violated Americans' rights. Victory! https://t.co/OtBGc3aVuU pic.twitter.com/7thZIGXbyI

“The government should now commit to destroying the call records that it collected illegally – not just its database of ‘raw’ data but any subsidiary databases that include query results,” wrote Klayman in a statement.

The government hid behind a veil of secrecy in order to conduct the “likely unlawful” activity, Leon found. “To them, it is pure ‘conjecture’ that ‘records of Plaintiffs’ calls have been’ or ‘will be’ reviewed ‘during the remaining two months of the Section 215 program,’” he wrote. “I wholeheartedly disagree.”



Leon said he regretted not issuing the injunction when he first ruled on the case, and that his faith in the appeals system had been misplaced. “In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised,” he wrote. “I did so with the optimistic hope that the appeals process would move expeditiously.”

“However, because it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm,” he continued, “I will not do so today.”