Court allows NSA sweep of phone records

28 Aug 2015 | Author: | No comments yet »

Appeals court lifts injunction against NSA bulk surveillance.

In June, mix of liberals and GOP members in Congress forced NSA to adopt modified program, passing the USA Freedom ACT over staunch opposition Senate Majority Leader Mitch McConnell and Majority Whip Sen. WASHINGTON — A federal appeals court Friday overturned an earlier decision against the federal government’s bulk collection of telephone data from millions of Americans.

The program, struck down in a 2013 federal district court opinion and since altered by President Obama and Congress, was allowed to stand — at least for now — by a three-judge panel of the U.S. Rather than dismiss the lawsuit brought by activist attorney Larry Klayman, the panel vacated a stayed preliminary injunction and sent the case back to U.S. Three judges at the US Court of Appeals for the District of Columbia Circuit said the plaintiffs, Larry Klayman and Charles Strange, had no standing to file the original claim, since they could not prove the NSA actually collected any of their records. While Klayman and Strange objected that the NSA refused to provide the evidence, the judges said that was working as intended. “Plaintiffs complain that the government should not be allowed to avoid liability simply by keeping the material classified. The appeals judges wrote, however, that Klayman and his co-plaintiffs cannot currently prove that Verizon Wireless is affected by the call-record dragnet, and that they therefore have no legal standing to challenge the collection.

That injunction, which roiled the national security establishment and divided traditional allies in Congress, had in turn been stayed pending an appeal. The government only acknowledges its collection and retention of bulk records from Verizon Business Network Services, which was named in a document from the Foreign Intelligence Surveillance Court that was leaked to the press by whistleblower Edward Snowden. Beginning in November, phone companies will retain the data, and the NSA only can obtain information about targeted individuals with permission from a federal court. One of the appellate judges, David Sentelle, wrote the case should be dismissed, rather than remanded for possible discovery. “Without standing there is no jurisdiction. Sentelle said Klayman, who heads an organization called Freedom Watch, hadn’t met a threshold requirement of showing his data were being collected, giving him standing to sue.

The plaintiffs alleging a privacy breach, the appeals court said in a unanimous decision, had not met the test of showing they were substantially likely to prevail in their underlying case against the NSA. It cited the possibility that “legal constraints, technical challenges, budget limitations or other interests prevented NSA from collecting metadata” from their phone company, Verizon Wireless.

The NSA’s blanket phone record collection program was kept secret from the public until a contractor for the agency, Edward Snowden, disclosed it to the media in June 2013. One of them, Judge David Sentelle, went further, declaring that the challengers “have not demonstrated that they suffer injury from the government’s collection of records” and urging that the case be dismissed. White House Press Secretary Josh Earnest said the ruling is “consistent with what this administration has said for some time, which is that we did believe that these capabilities were constitutional.” Still, he noted that Obama had advocated the types of changes passed by Congress to strengthen civil liberties protections.

Steve Vladeck, a law professor at American University Washington College of Law, said the decision was largely procedural and does not represent a vote of confidence in the program. The US government has maintained that the program was authorized under Section 215 of the Patriot Act, which allows the government to collect business records. Immediately after Congress acted on June 2 the FBI moved the FISC to recommence bulk collection, and the FISC confirmed that it views the new legislation as effectively reinstating Section 215 for 180 days, and as authorizing it to resume issuing bulk collection orders during that period. Whether those changes, championed as progress by Obama when he signed the new law, are enough to make it invulnerable to the privacy infringement claims will be decided in court.

He takes a dim view, however, of the judges who remanded the case. “They are kissing the behinds – the derrieres – of the people in the Washington, D.C., establishment who got them their jobs,” he says. “An ill-informed, first-year law student could have written the ruling in a day.” Klayman’s courtroom presentations often feature revolutionary rhetoric comparing President Barack Obama to King George III – not ludicrous, he says, pointing out Supreme Court Chief Justice John Roberts mentioned the American Revolution in the 2014 case Riley v. California, in which the court mandated warrants before police inspect an arrested person’s cellphone. “This explains the rise of Donald Trump and Bernie Sanders – the American people have lost confidence in all three branches of government and we’re back in 1776,” Klayman adds. “We are in a revolutionary state.

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