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

Legal Issues

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