Appeals Court Allows NSA Telephone Record Collection

Posted August 28, 2015 at 11:55am

A federal appeals court on Friday overturned an injunction that would have halted the National Security Administration’s bulk collection of Americans’ telephone records, but the judges also allowed a lawsuit against the program to move forward.

The three-judge panel of the U.S. Court of Appeals for the D.C. Circuit tossed out the lower court’s injunction from 2013. That decision from U.S. District Judge Richard Leon was a major loss for the Obama administration about six months after former NSA contractor Edward Snowden exposed the domestic spying programs.

Leon sided with privacy advocates and ruled the collection program is likely to violate the constitution’s prohibition of unreasonable searches and seizures. However, he also stayed his order that the government stop collecting the records for a database pending this appeal.

The D.C. Circuit on Friday found that the plaintiffs, led by conservative advocacy lawyer Larry Klayman, fell short of having the proof needed to obtain an injunction. The opinion focused on whether the plaintiffs had the legal right to challenge the program, but does not weigh in on the constitutionality of the program itself.

The plaintiffs in the case inferred that the government would have needed to collect telephone records from Verizon Wireless, the nation’s largest cellular phone provider, in order to build an effective counter-terrorism program, the D.C. Circuit ruling states. The government had acknowledged bulk collection from Verizon Business Network Services, but had neither confirmed nor denied collection of records from Verizon Wireless, the ruling states.

“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,” Senior Circuit Judge Stephen F. Williams wrote in the opinion.

The ruling sends the case back to the district court in Washington D.C. for more legal proceedings on whether the plaintiffs can show they were harmed.

In the meantime, Congress and the country have moved on. President Barack Obama signed into law in June a bill (HR 2048) that set limits on the NSA’s authority to hold Americans’ phone records but allowed the bulk collection to continue until December.

The new law requires the agency to go to the phone companies, with a warrant, when it wants to review those records in the future.