Appeals Court Strikes Down Ruling Finding NSA Phone Records Collection Unconstitutional

from the well-that's-too-bad dept

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 collected.
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 preliminary injunction.
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...

Filed Under: doj, larry klayman, mass surveillance, metadata, nsa, phone records, section 215, standing, surveillance


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  • icon
    Groaker (profile), 28 Aug 2015 @ 11:18am

    Mensuration

    There is no choice but to continue to fight the overarching state. Not that I believe that it will make any difference in the final outcome.

    It was obvious that civil liberties were headed south since the early '90s. And even then, looking back, it should have been obvious that was the case since the early '80s.

    What is most surprising is not that Clapper lied to SCOTUS, but that he was proud to brag about it, and that SCOTUS was willing to accept this crime against the nation as the normal flow of events. In and of itself it is not the worst of all events, but it is a damn good yardstick showing how far we have degenerated.

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

  • icon
    orbitalinsertion (profile), 28 Aug 2015 @ 11:24am

    Aside from the whole standing issue itself being bullshit, stretched far beyond any appropriate application, this is bullshit. The contortions these minds must undertake in pursuit of executing their office are patently absurd. The laws and legal precedents are absurd. The interpretation of law and precedent is absurd. The disregard for law, the secret laws and rule, the creative (and also sometimes secret) legal opinions on what the law allows is absurd.

    And that we can just keep pushing further into the realm of the absurd is absurd. It was long ago, but somehow we manage to keep expanding this realm.

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

  • identicon
    Anonymous Coward, 28 Aug 2015 @ 11:28am

    Why do we elect lawyers?

    Since most congressman are lawyers, shouldn't they understand the constitution well enough to not violate it so much? If not, why are we electing lawyers?

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

    • icon
      Groaker (profile), 28 Aug 2015 @ 1:41pm

      Re: Why do we elect lawyers?

      Because almost all lawyers see law as a game. To see how far it can be stretched, so that they can get what they want (or are paid for.)

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

  • identicon
    David, 28 Aug 2015 @ 11:32am

    I call bull shit

    However, plaintiffs are Verizon Wireless subscribers and not Verizon Business Network Services subscribers.

    Uh, so the Appellate court assumes that there is a reasonable possibility that NSA bulk collects business network servces subscribers but not wireless subscribers.

    That either means that they assume terrorists use business plans. Or it means that the NSA does not even bother with terrorists and is only concerned with industrial espionage.

    In other words: "plaintiffs have seemingly not considered the possibility that the NSA is either totally incompetent or acting entirely in violation of Constitution and international treaties".

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

  • identicon
    TDR, 28 Aug 2015 @ 11:45am

    I wonder how much they were paid to make this ruling...

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

  • identicon
    Anonymous Coward, 28 Aug 2015 @ 11:55am

    nice, judge assisted coverup. I guess these guys have never read any snowden documents ever. They probably don't exist in their warped minds.

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

  • icon
    pixelpusher220 (profile), 28 Aug 2015 @ 12:01pm

    Key Question

    Does SCOTUS believe it made a mistake in the Clapper decision? If they don't seems doubtful they would bring up a new challenge to it....

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

    • identicon
      Anonymous Coward, 28 Aug 2015 @ 12:39pm

      Re: Key Question

      SCOTUS doesn't like to admit mistakes. The best we can hope for is for them to say that the Clapper decision was somehow special and different from every other similar case.

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

  • icon
    Chronno S. Trigger (profile), 28 Aug 2015 @ 12:14pm

    So at this point it's accepted that the NSA phone records collection is unconstitutional, but the appeals court will not enforce the ruling until someone steps forward with absolute proof that they specifically are being spied upon. Of course any evidence that could be brought up will be suppressed due to "National Security".

    The appeals court leaves it open that Verizon could sue, but I'd bet that Verizon has NSLs that expressly forbid presenting any form of real evidence. Plus, Verizon existence depends on a government granted monopoly. Verizon fights this and all of a sudden good Net Neutrality laws start getting passed.

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

  • identicon
    Personanongrata, 28 Aug 2015 @ 12:22pm

    Defenders of the Status Quo

    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.

    These are nothing but the words of weasels who are hiding behind the specious claim of standing.

    The clowns masquerading as judges sitting on the US Court of Appeals for the District of Columbia Circuit: Circuit jester Brown, Senior Circuit jester Williams, Senior Circuit jester Sentelle should be ashamed of themselves in allowing the US government to run roughshod over US Constitution by completely abdicating their authority to protect and defend the supreme law of the land in face of overwhelming evidence of US government criminality.

    Dear worthless court jesters you are defending the unconstitutional actions of a clearly criminal government in direct contravention of evidence that is already public, has been disseminated widely (thank you Edward Snowden) and inimical to your oath's of office.

    Either uphold the US Constitution or resign.

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

    • identicon
      Anonymous Coward, 28 Aug 2015 @ 12:53pm

      Re: Defenders of the Status Quo

      The government is in a really good position here. Everyone knows they're being (illegally) spied on. Without the government specifically coming out and admitting it, there is no concrete evidence. The gov will never openly admit it. They can easily throw out a national security defense and hide all the evidence as needed.

      It's perfect

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

  • icon
    MarcAnthony (profile), 28 Aug 2015 @ 1:11pm

    Illegitimate

    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.”

    Asserting privileged, secret control over citizens in a supposed representative democracy can only lead to an inauspicious outcome. Such regulations are inherently illegitimate, as they don't jibe with the right to redress grievances. The judge's statement is totalitarian horsehit.

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

  • identicon
    Anonymous Coward, 28 Aug 2015 @ 3:27pm

    So why dont you go out on the streets and voice your opinion?
    Whats that? You would probably get arrested if you started to organize an anti-democratic event? Dont be silly, only Russia and Iran does that!

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

  • identicon
    Anonymous Coward, 28 Aug 2015 @ 4:55pm

    No matter here, got rid of that cell years ago and will never own another. Up yours Uncle Sam.

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

  • identicon
    J.R., 28 Aug 2015 @ 4:58pm

    Catch-22

    You can't sue without standing and all the evidence of standing, that is, who is being snooped on [every man, woman, and child in the United States} is a state secret because the government says so. Perfect Catch-22.

    Cynical, bet they were snickering as they wrote their opinion(s) dismantling the Constitution.

    Unsurprising though, judges and lawyers ended up in the dock at Nuremberg.

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

  • identicon
    Anonymous Coward, 28 Aug 2015 @ 5:09pm

    The US government is happy with the ongoing domestic and international spying.

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

  • identicon
    Anonymous Coward, 29 Aug 2015 @ 7:37am

    So... can we find a Verizon Business Network Services customer to step up to the plate?

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

  • identicon
    Anonymous Coward, 29 Aug 2015 @ 7:03pm

    I think you misspelled Judge Brown-Nose

    A government lawyer siding with the government? Imagine that!

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

  • identicon
    GEMont, 30 Aug 2015 @ 2:16pm

    Ah, the joys of extortion and blackmail...

    A Hidden Press Report by Rustie Nayle, Spet. 3, 2066

    Normally used extensively by the members of Organized Crime to insure their members received special treatment and minimal sentencing by the American Department of Justice and the courts, the Corporate-owned Delinquent Federal Government of the USA had adopted the process of Family Night Images in whole, right after 9/11, to maintain control over the members of the judiciary presiding over its Total Home Surveillance Program and clandestine operation failures.

    It is truly amazing how easily and quickly a few pictures of a judge's children or wife, sleeping in their beds, with a masked man standing over them, holding an axe, will make a normally, mostly-honest judge, do whatever he is told to do by the clandestine photographers.

    It is a process that almost never fails to achieve its goal.

    The process was successfully used by the perpetrators of 9/11 to convince the members of the Democratic Party that their future literally depended on complete compliance to the Corporate Cabal, making the USA a one party government nation, almost overnight. So successful was that campaign that less than a handful of democratic politicians had to be Suicided and now the political parties of the USA are indistinguishable one from the other, except for their party lapel buttons.

    The Republican Party naturally, needed no such incentive to cast their lot in with the Corporate Cabal. Invitations were sent out to all members, to attend a masked ball and full attendance was achieved for the announcement of the Republican conquest of the American State. The applause was deafening and lasted a full five minutes.

    The result of the Federal Government's nationwide surveillance and its reinterpretation of the laws and the constitution under the guise of fighting terrorism, had given the Corporate Cabal the perfect mechanism for the exploitation and dissolution of the nation without the need for massive population elimination procedures: a subservient government body that answered only to the members of the Ownership Society, but which was still held in highest esteem by the American Peasants who believe it still answered to them.

    This was Amerika in 2015.

    It was a downhill ride, without any breaks, from there to the bottom and took less than decade to crash.

    The Cabal and the members of the Ownership Society quickly relocated their operations to the abandoned castles and fortresses of the European Union and with twenty five years, brought that civilization to its knees as well.

    The surviving Ownership Society members currently run the world with an iron fist from a variety of high tech fortresses in the Alps, using drone bombs to punish any of the vassal nations who do not fulfill their yearly tithes and quotas.

    ----

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


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