Appeals court overturns major anti-NSA decision

A federal appeals court on Friday reversed a lower court’s ruling that NSA bulk telephone surveillance violated the Constitution.

The ruling from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit did not specifically contradict the lower court’s claims about the constitutionality of the program, which operated under Section 215 of the USA Patriot Act. Instead, it focused on that court’s decision to temporarily halt the National Security Agency’s records collection as part of its December 2013 ruling.

The three judges, all of whom were nominated by Republican presidents, found that the district court should not have issued the injunction because the American citizens who sued the NSA had not demonstrated that they were likely to win their case. Judges do not typically issue injunctions unless there is a strong likelihood that the program or practice in question is legally suspect.

According to the appeals court, the plaintiffs in this case, Klayman v. Obama, had not met that threshold.

“The burden on plaintiffs seeking a preliminary injunction is high,” Judge Janice Brown, a George W. Bush appointee, wrote in her concurring opinion. “Plaintiffs must establish a ‘substantial likelihood of success on the merits.'”

Although one could reasonably infer from the evidence presented the government collected plaintiffs’ own metadata, one could also conclude the opposite. Having barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction.

Judge Stephen Williams, a Ronald Reagan appointee, added that the plaintiffs “lack[ed] direct evidence that records involving their calls have actually been collected.”

In reversing the decision of Judge Richard Leon of the U.S. District Court for the District of Columbia, the appellate judges did not address the central charge in his widely discussed ruling: that the NSA program, which Congress substantially modified when it passed the USA Freedom Act in June, violated the Fourth Amendment’s protections against general searches.

Judge Leon’s opinion was notable for not mincing words, ripping into the federal government for, he found, systematically violating the Constitution.

I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval … Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.

“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,” Sen. Ron Wyden (D-Ore.), one the Senate’s fiercest critics of broad-reaching surveillance, told the Daily Dot in an email. “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.”

The appeals court sent the case back to the district court. The plaintiffs will now have an opportunity to convince Judge Leon and his colleagues that they should allow a discovery phase and order the government to turn over records related to the program.

“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,” Judge Brown wrote. “Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information.”

Update 4:45pm CT, Aug. 28: Added comment from Sen. Ron Wyden.

Photo via Phil Roeder/Flickr (CC BY 2.0)

Eric Geller

Eric Geller

Eric Geller is a politics reporter who focuses on cybersecurity, surveillance, encryption, and privacy. A former staff writer at the Daily Dot, Geller joined Politico in June 2016, where he's focused on policymaking at the White House, the Justice Department, the State Department, and the Commerce Department.