Injunction Reinstated Against NSA Spying

Injunction Reinstated Against NSA Spying


Monday, November 09, 2015 Last Update: 6:13 AM PT


WASHINGTON (CN) - The federal judge who first ruled the government's collection of cellphone metadata unconstitutional again blocked the National Security Agency program Monday.

The decision comes nearly three months after the D.C. Circuit reversed U.S. District Judge Richard Leon's original injunction on the grounds that none of the plaintiffs in the case, including conservative legal activist Larry Klayman, could prove their data had been collected.

Klayman attempted to fix this issue by filing an amended complaint in September. The new filing adds two more plaintiffs who subscribed to Verizon Business Network Services, and Leon suggested at a Sept. 2 hearing that their involvement allows Leon to reinstate the injunction.

The 43-page ruling Leon filed Monday primarily focuses on whether Klayman's Fourth Amendment challenges are deserving of an injunction, but Leon's analysis hinged on whether the plaintiffs would be able to prove the searches were unreasonable, even with changes in the law.

Congress passed the USA Freedom Act in June to stop the government from obtaining bulk telephone metadata, beginning Nov. 29. Before that deadline, however, the government can continue its old collection habits under the Patriot Act.

To Leon, the ever-changing relationship people have with their smartphones illustrates the importance of preserving their right to privacy when using their devices.

"Surely a person's expectation of privacy is not radically different when using his or her cellphone to make a call versus to check his or her bank account balance," Leon wrote.

Leon contrasted such searches from other seeming invasions of privacy that occur under special circumstances, such as at airport security.

While people subjected to these searches "check certain rights at the door," Leon said cellphones are different. Because cellphones are a "constant" presence for most people, the privacy protections on them must be substantial, Leon found.

Leon rejected the government's attempt to characterize its searches of individuals' data at issue here as "minimal and finite."

"To say the least, the searches in this case lack most of these hallmarks of minimal intrusion," Leon wrote. "It is not, as an initial matter, a discrete or targeted incursion. To the contrary, it is a sweeping and truly astounding program that targets millions of Americans arbitrarily and indiscriminately. To be sure, by designing a program that eliminates the need for agents to use discretion, the Government has reduced to zero the likelihood that metadata will be collected in a discriminatory fashion - a characteristic that the Supreme Court has suggested minimizes the privacy intrusion."

Even though there remains a short amount of time for the government to collect metadata under the previous rules, Leon noted that the NSA would still maintain the data for five years.

In addition to slamming that lengthy timeframe, and the shroud of secrecy that permeates this case, Leon said there simply isn't enough evidence that the program is successful enough to justify such an invasion of privacy. Furthermore, the plaintiffs have shown that they would suffer "irreparable harm" if the collection continued.

"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," Leon wrote before enjoining the program. "It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in the age of evolving technological wizardry."

Though Klayman agreed that Klayman and the other original challengers of the program did not have standing, J.J. Little and his law firm, J.J. Little & Associates, fared better as clients of Verizon Business.

"Because the Government has acknowledged that VBNS subscribers' call records were collected during a three-month window in which the Little plaintiffs were themselves VBNS subscribers, barring some unimaginable circumstances, it is overwhelmingly likely that their telephone metadata was indeed warehoused by the NSA," Leon wrote.

Their subscription to Verizon business meant there was "no need to speculate that their metadata was targeted for collection," the decision states.

As to the government's contention that Little lacks proof that the NSA specifically searched his data, Leon "wholeheartedly" disagreed.

Citing his December 2013 opinion, Leon said the NSA must analyze the information on every number it collects every time queries its database. This means the NSA searched Little's records even if it didn't specifically target them, Leon wrote.

As for whether Little could challenge the government's future collection of their records, Leon said it defied common sense to assume, as the government contended, the NSA would stop querying Verizon Business data in the future.

"In fact, it would make no sense whatsoever for the Government to use all available tools except VBNS call data to accomplish it putative goals," Leon wrote

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