Court overturns injunction against NSA bulk data collection program

A federal appeals court on Friday reversed an injunction against the National Security Agency's domestic telephone surveillance program, while leaving open the question of whether the controversial practice is legal.

The three appeals court judges assigned to the case splintered, with each writing a separate opinion. But they overturned a key ruling from December 2013 that critics of the NSA program had used to advance their claims that the collection of information on billions of calls made and received by Americans was illegal.


That ruling, issued by Judge Richard Leon in Washington, sent shockwaves across the legal landscape because it was the first in which a federal court judge sided with critics who questioned the legality of sweeping up data on vast numbers of phone calls — nearly all of them completely unrelated to terrorism.

The new decision Friday from the U.S. Court of Appeals for the D.C. Circuit did not kill the lawsuit brought by conservative gadfly Larry Klayman. The appeals court voted, 2-1, to allow the lawsuit to proceed in the district court, but the judges wiped out Leon's injunction and left doubts about whether the case will ever succeed.

There are, however, other outstanding cases targeting the surveillance program. In May of this year, the New York-based 2nd Circuit U.S. Court of Appeals weighed in withanother ruling, which said the NSA's bulk data-collection program was never legalunder the PATRIOT Act provision used to authorize it. The 2nd Circuit did not address whether the overall program was unconstitutional.

That decision remains the only appeals court decision addressing the legality of the NSA phone metadata program, although another legal challenge is pending before the San Francisco-based 9th Circuit.

Congress further muddied the legal waters in June, when it passed a law ending the so-called bulk collection of telephone metadata. However, the program has been allowed to continue through November under a stopgap measure while the Obama administration attempts to transition to a new system where telephone companies hold the data and investigators query it when needed.

When Leon issued his injunction against the NSA program in 2013, he ordered that it not take effect until the government's appeal of his ruling was decided.

The D.C. Circuit decision on Friday focused on whether Klayman and the other plaintiffs had met the legal requirements for standing — essentially whether they had produced enough evidence that information about their calls had been swept up by the NSA program.

Judge Janice Rogers Brown said the plaintiffs had barely met the threshhold needed to proceed with their case at least at this time. Judge Stephen Williams said the plaintiffs might be able to show standing as the case proceeds, so he wouldn't toss it out at this point. Judge David Sentelle said the plaintiffs clearly fell short of proving that they were affected by the metadata-gathering program.

Leon reacted quickly to the appeals court ruling. In an order Friday afternoon, he set a hearing for Wednesday on the next steps in the surveillance lawsuit.

Until Congress acted earlier this year, many lawyers expected the legality of the surveillance program to eventually be resolved by the Supreme Court. However, there now appears to be some chance that lower courts use the new law to punt on the issue of whether earlier iterations of the surveillance efforts were legal and that the justices also manage to avoid dealing with that issue head-on.

In 2013, the Supreme Court cited standing concerns as it tossed out a lawsuit over NSA surveillance. However, that decision came months before NSA contractor Edward Snowden's revelations about the extent of the spy agency's domestic surveillance efforts.

One of the most strident and longstanding critics of NSA surveillance, Sen. Ron Wyden (D-Ore.) said Friday that the latest court action underscored why Congress was correct to step in earlier this year with legislation to transform the program.

"This ruling shows how important it was to pass the USA Freedom Act and rein in the National Security Agency’s sweeping mass surveillance program," Wyden said. "Without this meaningful reform, Americans would be relying on a long and tortured court process to protect our liberty. USA Freedom Act ended government mass surveillance under the Patriot Act for good."

Klayman bitterly denounced the D.C. Circuit decision Friday. He also complained about how long the judges took to rule on the appeal, which was filed in January and argued last November.

"I'm confident we'll prevail in the end. What's happening in the interim is an outrage," Klayman said in an interview. "If they were going to come up with this kind of approach they could have done it nearly two years ago. They sat on this thing for two years while the rights of Americans continued to be violated. This is simply a dodge."

The judges pointed to the fact that Klayman and his fellow plaintiffs were customers of Verizon Wireless, not Verizon Business Network Services, the corporate entity that Snowden fingered by releasing a top-secret court order issued to the Verizon business subsidiary. However, Klayman noted that earlier this month,the government disclosedin response to a New York Times Freedom of Information Act lawsuit that that Verizon Wireless was covered by the NSA program, at least for a time.

A spokesman for the American Civil Liberties Union, which filed the suit heard in the 2nd Circuit, noted that court is scheduled to hear new arguments next week about the impact the new legislation passed by Congress and signed by President Barack Obama will have on the litigation. The ACLU case doesn't appear to be affected by the exact standing concern the D.C. Circuit raised since the civil liberties group is a customer of Verizon Business Network Services.

The Justice Department had no immediate comment on the D.C. Circuit ruling.

All three of the D.C. Circuit judges who ruled on the case are Republican appointees. Brown was named to the court by President George W. Bush. Williams and Sentelle were appointed by President Ronald Reagan.