Back in December of 2013, judge Richard Leon of the DC district court, ruled that the NSA's bulk metadata collection under Section 215 of the PATRIOT Act was unconstitutional
and issued an injunction against it (though, recognizing the inevitable appeal, Judge Leon stayed the injunction). This was in the case brought by Larry Klayman and FreedomWorks.
Leon's ruling was detailed and thorough... but the DC circuit appeals court has overturned it
and sent it back to the lower court, focusing mainly on the "standing" question that has been raised
in basically every case against NSA surveillance. In short, the government says "if you can't prove that we spied on you directly, then you can't sue us over our spying on everyone generally." That seems sketchy for all sorts of reasons, and Judge Leon, in his original ruling pointed out how ridiculous it was, mocking the government's reliance on the Supreme Court ruling in "Clapper" (a case against James Clapper) where the Supreme Court basically agreed that you needed more evidence
to show you had standing. Of course, that ruling only happened after the US Solicitor General lied
to the Supreme Court about how defendants arrested using such data would be told how it was collected. Besides, here, Judge Leon noted, there was plenty of evidence that everyone's information was being collected.
Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it "creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light."
[....] Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism--in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.... Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not inspire confidence!
But, the appeals court just doesn't buy it. From the opinion by Judge Janice Brown:
The record, as it stands in the very early stages of this
litigation, leaves some doubt about whether plaintiffs’ own
metadata was ever collected. Plaintiffs’ central allegation is
that defendants “violated the Fourth Amendment to the U.S.
Constitution when they unreasonably searched and seized and
continue to search Plaintiffs’ phone records . . . without
reasonable suspicion or probable cause.” ... Plaintiffs
have supported this claim with specific facts, notably: (1) The
NSA operates a bulk telephony-metadata collection program;
and (2) on April 25, 2013, the FISC issued an order requiring
Verizon Business Network Services to produce its subscribers’
call detail records to the NSA on a daily basis from April 25,
2013 to July 19, 2013. However, plaintiffs are Verizon
Wireless subscribers and not Verizon Business Network
Services subscribers. Thus, the facts marshaled by plaintiffs
do not fully establish that their own metadata was ever
Judge Brown admits that Judge Leon explains why the government's own statements make it clear that its metadata collection goes beyond just Verizon Business Network Services, but doesn't think it's enough evidence. She also highlights how there is at least some
more substantial evidence than in the Clapper/Amnesty International case that the Supreme Court ruled on, but still doesn't find it enough:
However, the burden on plaintiffs seeking a preliminary
injunction is high. 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
Instead, Judge Brown says that the lower court could try to determine if it's appropriate for Klayman/Freedomworks to be allowed to conduct discovery with the government to obtain more evidence that his phone record info was collected -- while admitting that's unlikely because "secret program" and all that.
On remand it is for the district court to determine whether
limited discovery to explore jurisdictional facts is appropriate.... Of course, I recognize
that, in order for additional discovery to be meaningful, one of
the obstacles plaintiffs must surmount is the government’s
unwillingness to make public a secret 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. Plaintiffs’ claims may well founder in that
event. But such is the nature of the government’s privileged
control over certain classes of information. Plaintiffs must
realize that secrecy is yet another form of regulation,
prescribing not “what the citizen may do” but instead “what
the citizen may know.”... Regulations of this sort
may frustrate the inquisitive citizen but that does not make
them illegal or illegitimate. Excessive secrecy limits needed
criticism and debate. Effective secrecy ensures the
perpetuation of our institutions. In any event, our opinions do
not comment on the propriety of whatever privileges the
government may have occasion to assert.
Got that? Excessive government secrecy sucks, but, hey, what can you do?
In a separate ruling, Judge Stephen Williams also says there's no standing, giving even more deference to the Supreme Court's ruling in the Clapper/Amnesty International case. While at least Judge Brown was willing to distinguish the two, Judge Williams sees no such distinction:
Here, the plaintiffs’ case for standing is similar to that
rejected in Clapper. They offer nothing parallel to the
Clapper plaintiffs’ evidence that the government had
previously targeted them or someone they were
communicating with (No. 3 above). And their assertion that
NSA’s collection must be comprehensive in order for the
program to be most effective is no stronger than the Clapper
plaintiffs’ assertions regarding the government’s motive and
capacity to target their communications
In fact, Judge Williams takes the odd position of adding in possible reasons why the NSA might not
be collecting everyone's metadata to show why such an inference is unfounded:
The strength of plaintiffs’ inference from the
government’s interest in having an effective program rests on
an assumption that the NSA prioritizes effectiveness over all
other values. In fact, there are various competing interests
that may constrain the government’s pursuit of effective
surveillance. Plaintiffs’ inference fails to account for the
possibility that legal constraints, technical challenges, budget
limitations, or other interests prevented NSA from collecting
metadata from Verizon Wireless. Many government
programs (even ones associated with national defense) seem
to be calibrated or constrained by collateral concerns not
directly related to the program’s stated objectives, such as
funding deficiencies, bureaucratic inertia, poor leadership,
and diversion to non-defense interests of resources nominally
dedicated to defense. It is possible that such factors have
operated to hamper the breadth of the NSA’s collection.
Basically, we can't assume that Verizon Wireless metadata was collected because, you know, maybe it wasn't. Maybe "bureaucratic inertia" meant the NSA really didn't care about Verizon Wireless. Who can really say?
The only "dissent" on the three judge panel comes from Judge David Sentelle, who says he basically agrees with absolutely everything Judge Williams says except
for the idea that the case should be remanded to the district court for further discovery, saying the entire case should be dismissed outright.
Plaintiffs have not demonstrated that they suffer injury
from the government’s collection of records. They have
certainly not shown an “injury in fact” that is “actual or
imminent, not conjectural or hypothetical.” ... I agree with the conclusion of
my colleagues that plaintiffs have not shown themselves
entitled to the preliminary injunction granted by the district
court. However, we should not make that our judicial
pronouncement, since we do not have jurisdiction to make any
determination in the cause. I therefore would vacate the
preliminary injunction as having been granted without
jurisdiction by the district court, and I would remand the case,
not for further proceedings, but for dismissal.
Without standing there is no jurisdiction. Without
jurisdiction we cannot act.... Therefore, I
agree with my colleagues that the issuance of the preliminary
injunction was an ultra vires act by the district court and must
be vacated. However, I believe we can do no more. I would
remand the case for dismissal, not further proceedings.
So... that's not great. However, it also creates a pretty clear circuit split between the DC Circuit and the 2nd Circuit, which you may recall ruled that the ACLU and others had standing
in a similar lawsuit. Given this clear circuit split, perhaps the Supreme Court can actually be persuaded to take up the case and fix the mistake it made in the Clapper case a couple years ago...