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Court rejects challenge to NSA’s ongoing mass collection of phone data

Court rejects challenge to NSA’s ongoing mass collection of phone data

by irleaksAugust 28, 2015

WASHINGTON — A federal appeals Friday overturned an earlier decision against the federal government’s bulk collection of telephone data from millions of Americans.

The program, struck down in a 2013 federal district court opinion and since altered by President Obamaand Congress, was allowed to stand — at least for now — by a three-judge panel of the U.S. Court of Appeals for the District of Columbia. The panel sent the case back to district court for further hearings.

U.S. District Court Judge Richard Leon ruled in 2013, in a lawsuit brought by conservative activist Larry Klayman, that the legal challenge to the massive surveillance program — disclosed that year by former contractor Edward Snowden — would likely succeed. He issued a preliminary injunction against it but suspended the order to allow an appeal by the Justice Department.

Since then, the program was upheld by a federal court in New York, struck down by an appeals court there, and altered by Congress. Beginning in November, phone companies will retain the data, and the NSA only can obtain information about targeted individuals with permission from a federal court.

Under the program, the government can obtain information such as phone numbers dialed and the length of the calls, but not their content.

The three-judge panel ruled that challengers to the telephone records collection failed to prove that their own records were collected. It cited the possibility that “legal constraints, technical challenges, budget limitations or other interests prevented NSA from collecting metadata” from their phone company, Verizon Wireless.

The judges also ruled that the program’s secrecy, challenged by the plaintiffs in the case, “is a feature of the program, not a bug,” allowing the government to sidestep liability by keeping the material it collects classified.

Without ruling on the program’s ultimate constitutionality, the judges raised the bar for challengers to prove their case. One of them, Judge David Sentelle, went further, declaring that the challengers “have not demonstrated that they suffer injury from the government’s collection of records” and urging that the case be dismissed.

White House Press Secretary Josh Earnest said the ruling is “consistent with what this administration has said for some time, which is that we did believe that these capabilities were constitutional.” Still, he noted that  had advocated the types of changes passed by Congress to strengthen civil liberties protections.

Steve Vladeck, a law professor at American University Washington College of Law, said the decision was largely procedural and does not represent a vote of confidence in the program. But he said it will make it harder for challengers to demonstrate standing in suits challenging secret government programs.

The NSA program now has a 2-2 record in federal courts. In New York, a district judge had upheld it, but a panel of the the 2nd Circuit federal appeals court overturned that ruling in May. It said the program “exceeds the scope of what Congress has authorized” under the USA Patriot Act, which the government said permitted the massive data collection.

“The sheer volume of information sought is staggering,” that court said, extending to “every record that exists, and indeed to records that do not yet exist.”

The New York challenge was filed by the American Civil Liberties Union. Staff attorney Alex Abdo said Friday that the new ruling is less important than the one in May because it didn’t address the constitutionality or legality of the program.

“Only one appeals court has weighed in on the merits of the program, and it ruled the government’s collection of Americans’ call records was not only unlawful but ‘unprecedented and unwarranted,’” Abdo said. ”And next week, that appeals court will hear argument on the ACLU’s request that the NSA be required to end bulk collection.”

The ruling reversed an injunction from a lower court on the surveillance program – but only in a technical sense, as the injunction never actually went into force.

But the judges’ decision does not impact that of a different federal appeals court, which in May found that the bulk phone records collection lacked a foundation in law. That ruling, by the second circuit court of appeals, added momentum to a congressional rollback of the surveillance program that has yet to take effect.

The case now returns to a lower federal judge, Richard Leon, to establish if Klayman’s call records appear in NSA databases. The judges acknowledged that the highly classified nature of the program makes it difficult, if not impossible, for Klayman to establish that the NSA collected his records.

“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,” the judges wrote.

Although Congress in June barred the NSA from collecting US phone data in bulk, the ban does not take effect until December. Privacy advocates have warned that the replacement surveillance powers Congress created are sufficiently broad to permit the NSA or partner agencies to reconstitute much of the barred surveillance in different forms.


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