By Jacob Fischler
Law360, Washington (November 9, 2015, 12:25 PM ET) – A D.C. federal judge on Monday ordered the National Security Agency to cease its bulk telephony metadata program – 20 days before the program was set to expire anyway under the USA Freedom Act – saying the practice likely violated the Fourth Amendment.
U.S. District Judge Richard J. Leon issued a preliminary injunction against the NSA on behalf of a law firm that subscribes to Verizon Wireless Business Network, the only wireless company the government has explicitly acknowledged participated in the controversial phone data collection program. Despite government arguments there was no proof VWBN still participated in the program, the judge found it was likely the Verizon unit’s involvement continued.
“The government’s position that VBNS may no longer be a participant in the program is fundamentally at odds with its ever-escalating concerns of terrorist threats,” Judge Leon said. “It defies common sense to argue, as they apparently do, that the government has chosen to omit from this breathtakingly broad metadata collection program a provider that the government has surveilled in the past and that, presumably has the infrastructure to continue assisting in that surveillance.”
Long-standing efforts by lead plaintiff Larry Klayman to force the government to end the program were stymied by the fact that he was not a VWBN subscriber and thus could not prove his metadata had ever been collected. A fourth amended complaint added attorney J.J. Little and his firm, J.J. Little & Associates PC in September, addressing that issue.
Little was likely to prevail in showing the NSA program violated the Constitution’s prohibition on unlawful searches and seizures because bulk collection of phone metadata constitutes a search under the Fourth Amendment, violating citizens’ reasonable expectations of privacy, Judge Leon said. Further, the judge was likely to find the practice unreasonable, as the law allows only limited exceptions to prohibitions of warrantless search, he said.
The government had argued reforms to the program – including mandating a Foreign Intelligence Surveillance Court judge sign off on the searches and limiting the information returned from any particular query of the data – rendered actual invasions of citizen privacy unlikely, according to Judge Leon’s opinion Monday.
But the judge rejected that view, objecting to the lack of specific targeting in the “sweeping, and truly astounding program that targets millions of Americans arbitrarily and indiscriminately.” He also blasted the program for being “shrouded in secrecy,” saying people had not been made aware of the program and given an opportunity to avoid it.
Although Judge Leon said he agreed with the NSA’s stated goal of intercepting potential terrorist attacks, he noted the government had not provided a single example of a threat that was foiled through phone data collection.
The judge concluded the 43-page opinion with a nod to the winding-down of the NSA program, established in June with the passing of the Freedom Act, but said it was important for the judiciary branch to address the underlying constitutional issues.
“With the government’s authority to operate the bulk telephony metadata program, quickly coming to an end, this case is perhaps the last chapter in the judiciary’s evaluation of this particular program’s compatibility with the Constitution,” he said. “It will not, however, be the last chapter in the ongoing struggle to balance privacy rights with national security interests under our Constitution in an age of evolving technological wizardry.”
In a phone interview Monday, Klayman said he was “ecstatic” about the decision, saying it would reverberate far beyond Little’s firm.
“It’s of general applicability,” he said. “The judge stood up for all Americans.”
A spokeswoman for the U.S. Department of Justice said in an email Monday the government was “reviewing the decision.”
Late last month, the government asked Judge Leon to consider the Second Circuit’s opinion in a related American Civil Liberties Union case, citing its finding that Congress intended an orderly transition from the program that the court should not meddle in to provide short-term relief. The Second Circuit found that Congress had made a considered judgment to keep the program in effect for six months to ensure authorities have the tools they need to fight terrorism.
Judge Leon’s December 2013 opinion found Klayman and co-plaintiffs Charles and Mary Ann Strange were also likely to win their case on their Fourth Amendment claim and he issued a preliminary injunction at that time, but immediately stayed that injunction, foreseeing an appeal would be quickly forthcoming and decided. Instead, the case took nearly two years to return to his court after the D.C. Circuit found Klayman and the Stranges lacked standing.
Klayman is representing himself and the other plaintiffs.
The government is represented by Benjamin C. Mizer, Joseph H. Hunt, Anthony J. Coppolino, James J. Gilligan, Rodney Patton, Julia A. Berman and Caroline J. Anderson of the U.S. Department of Justice.
The case is Klayman v. Obama et al., case number 1:13-cv-00851, in the U.S. District Court for the District of Columbia.
– Editing by Rebecca Flanagan.