Here's Hoping Judge Ignores The Nutty Plaintiff With An Important Case On NSA Surveillance Of Business Records

from the hopefully,-hopefully dept

Many of us were excited, 11 months ago, when District Court Judge Richard Leon ruled that the NSA's bulk collection of phone metadata was unconstitutional. This was the first program revealed via the documents from Ed Snowden, and it involved the US using Section 215 of the PATRIOT Act, approved by the FISA Court with little explanation (until much later) to say that it's okay to request all phone records from Verizon. What had been often mentioned as a brief aside, is the fact that the plaintiff in the case, Larry Klayman is a bit of a conspiracy-theorist nutjob.

That came out loud and clear earlier today during the oral arguments in the appeal (Klayman had tried to go straight to the Supreme Court, which failed, though pretty much everyone expects the case to get back there eventually). Dan Froomkin, over at The Intercept, briefly discusses how Klayman's nutty rantings in the court have the potential to derail the whole thing.
But the lead plaintiff in this case is Larry Klayman, a bombastic and litigious conspiracy theorist who happened to file one of the first post-Snowden lawsuits.

And when the three-judge panel began peppering him to substantiate his claims of standing and harm, Klayman was unable to make a cogent argument. He accused the government of consistently lying and of getting “into people’s underwear.” And he cast himself personally as the victim of government surveillance and dirty tricks, saying his phone made calls he never placed and that a client’s computer had been broken into.

“I can’t talk on the phone anymore,” he complained.

He told the judges they were the last defense against tyranny, and warned them of revolution should they fail.
Riiiiiiiight.

Thankfully, Cindy Cohn from the EFF was also on hand and provided a much more legally relevant and defensible argument:
On the crucial issue of how the information being collected by the NSA differs from the information being collected in the 1979 case of Smith v. Maryland, Cohn provided the key answer that Klayman was incapable of summoning: Its size.

Smith was about one robbery suspect, whose calls were monitored for three days. “This is the untargeted mass collection of the phone calls of millions of people over many years,” Cohn said.

Judge David Sentelle interrupted: “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”

Cohn said American citizens have a reasonable expectation that the government isn’t logging all their phone calls all the time for no specific reason. “There are regular people making everyday phone calls, that are swept up in this.”
There's much more in the actual discussion, but this is really what the case is about. Can the courts continue to take the awful Smith v. Maryland argument, saying that it was okay to get a single phone's records from the phone company without a warrant, and extrapolate it out to mean that the government can demand every phone record of every call. There's still a lot more to go in this process, including a likely rehearing with the full DC Circuit and then the eventual Supreme Court ruling. One just hopes that Klayman's nuttiness doesn't get in the way of this important case.

Filed Under: 4th amendment, 9th circuit, appeals, cindy cohn, larry klayman, nsa, phone records, richard leon, section 215, smith v. maryland, surveillance, third party doctrine


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  • identicon
    Anonymous Anonymous Coward, 4 Nov 2014 @ 4:10pm

    Lawyers Preparation

    Wow, this guy must be waaaaay out there.

    I have no doubt that the lawyers prepped him thoroughly, and still got this result. I wonder if he can restrain himself if there is a re-hearing?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 4:24pm

      Re: Lawyers Preparation

      I have no doubt that the lawyers prepped him thoroughly


      I think you missed a key point, Larry Klayman is a lawyer.
      Larry Elliot Klayman (born July 20, 1951) is a politically conservative American public interest lawyer and former Justice Department attorney who . . .

      (Footnote omitted.)

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Anonymous Coward, 4 Nov 2014 @ 4:30pm

        Re: Re: Lawyers Preparation

        What's that quote...a lawyer that represents their self has a fool for a lawyer, or something like that. A lawyer and still he can't get his arguments right, even after being prepped?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 4 Nov 2014 @ 4:33pm

        Re: Re: Lawyers Preparation

        ...in 1998, sued his mother for $50,000.

        reply to this | link to this | view in chronology ]

  • icon
    mr. sim (profile), 4 Nov 2014 @ 4:16pm

    some of what he says is hyperbole the same why i say i'm the only sane man in family. is my family insane? no they are just selfish narcissist's constantly engaging in foolishness.

    but some of his claims are in fact troubling showing he may be at least mentally unstable and paranoid. we can only hope this turns out for the best of the citizens and not the law enforcement agencies

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 4:20pm

    Tossed out of court

    Via Wikipedia references: “Nut Watch”, by Jacob Weisberg, Slate, June 1998
    • In 1992 in California, Klayman lost a patent case on behalf of a distributor of bathroom accessories. His obnoxious behavior got him barred from Judge William Keller's courtroom for life.

    • [Judge Denny] Chin fined Klayman $25,000 and barred him from his courtroom for life. A three-judge panel on the U.S. Court of Appeals threw out the fine but upheld the expulsion.

    Any bets on whether Klayman gets tossed out of court on this NSA case?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 4:21pm

    [CRINGING INTENSIFIES]

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 4 Nov 2014 @ 4:38pm

    So hugely important issues, but tied to someone voted most likely to be sanctioned and banned from that court for life.
    I think the NSA wants this to be the only case, so they can just keep playing up the only people opposed are nut jobs & terrorists.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 4:50pm

      Re:

      I think the NSA wants this to be the only case, so they can just keep playing...


      I was going to start a comment thread, and give it the subject line, “Cointelpro, provocateurs, and precedent”.

      But then the only body text I could think of to write was:
      [Redacted]

      And that wouldn't do at all. So I just closed the comment window.

      But now you're bringing up what I was thinking.

      Look, we have no evidence that Mr Klayman is intentionally tanking the case he brought in order to set a NSA-favorable precedent. Even thinking those thoughts... well, that in itself is some kind of a wacko conspiracy-theory.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 4:45pm

    If there's any consolation, EFF and ACLU have a joint case against Section 215 (Smith v. Obama) in which the plaintiffs are more competent.

    Odds are SCOTUS will hear this case together with Klayman like what they did with the Wurie/Riley cellphone search cases.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Nov 2014 @ 4:55pm

    What makes you all think that Klayman does not work for the NSA?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Nov 2014 @ 5:02pm

      Re:

      What makes you all think that Klayman does not work for the NSA?
      A sham lawsuit would be utterly unethical.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 4 Nov 2014 @ 5:17pm

        Re: Re:

        'Utterly unethical'? So you're saying the odds are good that that they are involved then?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Nov 2014 @ 5:49pm

          Re: Re: Re:

          'Utterly unethical'? So you're saying the odds are good that that they are involved then?

          No. I am not speculating on the odds.

          I am saying that a sham lawsuit is at least as serious as an intentional falsehood while under oath before a Senate committee. Probably even more serious.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Nov 2014 @ 6:11pm

            Re: Re: Re: Re:

            And we all know that recently uttered falsehoods while under oath before the Senate have resulted in significant penalties! Such as a severe finger waving!

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 4 Nov 2014 @ 6:17pm

              Re: Re: Re: Re: Re:

              I believe Mr Clapper apologized. Profusely.

              Didn't he apologize? To Mr Wyden? To the country—the people represented by the Congress?

              I am sure he apologized. There was a news story about it.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 4 Nov 2014 @ 6:27pm

                Re: Re: Re: Re: Re: Re:

                ... Mr Clapper...

                Excuse me. That should have read as General Clapper. Not mister. Sorry. No disrespect to the general's rank intended.

                reply to this | link to this | view in chronology ]

              • icon
                That One Guy (profile), 4 Nov 2014 @ 6:53pm

                Re: Re: Re: Re: Re: Re:

                No, he really didn't. His 'apology' was along the lines of an 'I'm sorry you're offended' fake-apology, where he didn't show a bit of remorse, and continued to try and justify his lie, even admitting, in a round-about way that it was a lie.

                reply to this | link to this | view in chronology ]

    • icon
      tqk (profile), 4 Nov 2014 @ 5:15pm

      Re:

      What makes you all think that Klayman does not work for the NSA?

      That leads me back to this:
      ... former Justice Department attorney ...

      To which I was just going to add, "Well, there's your problem." Considering what we've seen from the TLAs recently, is it that much of a stretch to believe that Klayman was an anomaly among DoJ?

      reply to this | link to this | view in chronology ]

  • identicon
    Zem, 4 Nov 2014 @ 5:27pm

    In the 21st century, the crazy man is right. Once you accept this you will sleep better.

    reply to this | link to this | view in chronology ]

  • icon
    ottermaton (profile), 4 Nov 2014 @ 9:54pm

    defense against tyranny

    He told the judges they were the last defense against tyranny...

    I'm sure the sarcastic, "Riiiight" following Klayman's rant was focused on the entirety of it, but that one statement there holds a lot of truth. Of course, judges could also be the cause of tyranny, depending on how they choose to exercise their power.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Nov 2014 @ 2:54am


    “Does it become an invasion because there’s lots of it? Or is a million times nothing still nothing?”


    So if I steal 1 cent from each US citizen, I should expect the courts to treat it as a single theft of 1 cent, because doing it to lots of people does not make it any worse?

    reply to this | link to this | view in chronology ]


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