Case Summary and Outcome

The Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed an amicus brief in Klayman v. Obama, a high-profile lawsuit that challenges mass surveillance, arguing that Americans’ telephone metadata deserves the highest protection of the Fourth Amendment.  The District Court for the District of Columbia granted Plaintiff-Appellees’, Larry Klayman and Charles Strange, requests for an injunction and entered an order that (1) barred the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts; and (2) required the Government to destroy any such metadata in its possession that was collected through the bulk collection program.  The District Court also stayed the Order pending appeal. On August 28, 2015, the US D.C. Circuit Court found that there were insufficient grounds for the injunction and threw out the lower Court’s ruling. Klayman has stated his intention to appeal the Court’s ruling to the US Supreme Court.

Facts

Larry Klayman and Charles Strange, are telephone service subscribers. After “The Guardian” newspaper reported leaks of classified material from Edward Snowden, a former National Security Agency (NSA) employee, about some o the U.S. government’s intelligence collection and surveillance programs, the Plaintiff-Appellees filed suit in the U.S. District Court for the District of Columbia in January 2014. The Plaintiff-Appellees filed a lawsuit, alleging that the Government, with the participation of private companies, is conducting “a secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications and communications from the Internet and electronic service providers.” The Plaintiff-Appellees allege, amongst other allegations, that the Government’s programs violate the First, Fourth, and Fifth Amendments of the Constitution.

The government’s “counterterrorism program” (under the USA PATRIOT Act) collects, compiles, retains, and analyzes bulk telecommunication records without a warrant. These records contain metadata (e.g. information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted) which the government analyzes to try to locate terrorist operatives. In doing so, the government engages in “repetitive, surreptitious surveillance of a citizen’s private goings on.”

The U.S. District Court granted the Plaintiff-Appellees’ requests for an injunction, and entered an order that barred the Government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts; and required the Government to destroy any such metadata in its possession that was collected through the bulk collection program. The Court also stayed its order, pending the appeal. The Court recognized that despite technological advances that were not previously in existence, “[a]t bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” In analyzing the Plaintiff-Appellees’ request for an injunction, the Court determined that the Plaintiff-Appellee’s privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata. As such, the Court found that the NSA’s bulk collection program was an unreasonable search under the Fourth Amendment, which protects individuals from unreasonable searches and seizures by the government.

On appeal, the D.C. Circuit Court threw out the lower court’s ruling, finding that it had insufficient grounds on which to rule against the NSA.

Decision Overview

The D.C. Circuit Court issued its decision per curium. In reaching its decision, the Court noted that, in the wake of the terrorist attacks of September 11, 2001, the U.S. government took several actions to respond to the need for a system of protections against the reoccurrence of such an event, most of which appeared to have democratic support from the American people.

The Court noted that, since 2006, the NSA had relied on a system of monitoring communications in the United States called “bulk data collection” through which it monitored telephone numbers dialled, durations of calls, and other information regarding the telecommunications activities of American citizens and other individuals in the United States. The lower court found that these activities constituted a “search” within the meaning of the Fourth Amendment to the Constitution of the United States. That Court further found that, in light of the circumstances, this search was unreasonable.

The D.C. Circuit Court disagreed. It found that, in order to find that a search is unreasonable, the plaintiff had to demonstrate that the NSA had “no reasonable articulable suspicion” that could justify its use of bulk data collection. The Circuit Court found that the plaintiff had provided insufficient grounds to meet this burden. Accordingly, after finding that the case was not moot (since it was capable of repetition evading review), it threw out the lower court’s decision to issue an injunction against the NSA prohibiting it from engaging in further bulk data collection.