Judge Tosses Long-Running Section 215 Surveillance Lawsuit

Privacy

from the it's-time-for-the-Supreme-Court-to-stop-dodging-difficult-surveillance-quest dept

A federal judge has issued the final word in one long-running dragnet surveillance suit. The lawsuit, filed by Larry Klayman immediately after the first Snowden leak, alleged the Section 215 phone records program — targeting Verizon Business customers according to the leaked document — was unconstitutional. DC district court judge Richard Leon agreed, issuing an injunction in December 2013 demanding a cessation of the Section 215 dragnet.

This order was immediately stayed to allow the government to appeal (and to continue harvesting domestic phone records in bulk). The Appeals Court disagreed with Leon, sending the case back for another ruling. It didn’t change anything at the lower level. Judge Leon still found the program unconstitutional and ordered the NSA to stop collecting the phone records of the two named plaintiffs.

Shortly after this ruling, the USA Freedom Act ended the NSA’s bulk collection of phone records, largely rendering the lawsuit moot. After another round of appeals, the government asked Judge Leon to dismiss the case entirely. Judge Leon has done so, agreeing with the government that the implementation of the USA Freedom Act prevents it from collecting phone records in bulk and brings it in line with the injunction previously issued by Leon. The plaintiffs were hoping a round of discovery would produce records substantiating their claims of warrantless surveillance of the single named client. Judge Leon has denied additional requests by the plaintiffs and dismissed [PDF] the case with prejudice.

[E]ven if plaintiffs were able to establish — through jurisdictional discovery — that the NSA had, in fact, collected their telephony metadata, they still would not be able to overcome the jurisdictional defect in this case. Because bulk collection under Section 215 is now prohibited by statute, plaintiffs’ claims for injunctive relief against bulk collection are moot, regardless of whether the Government actually collected and queried plaintiffs’ telephony metadata pursuant to the Section 215 program in the past.

The decision closes with Judge Leon expressing his hope the Supreme Court might step in and address the Third Party Doctrine directly and more closely examine the “expectation of privacy” concept in the context of today’s communication methods. (This is why the upcoming Carpenter case — dealing with warrantless collection of historical cell site information — bears watching.)

While the zeal and vigilance with which plaintiffs have sought to protect our Constitutional rights is indeed laudable, this Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs’ failure to demonstrate the necessary jurisdiction to proceed. I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror. Hopefully by the time these issues are next joined, our Supreme Court will have had the opportunity to provide us with further guidance on the parameters of our privacy interests in this era of ever-increasing electronic communication. If not, concerned citizens such as these will continue to shoulder the heavy yoke that vigilance to our Constitutional liberties surely requires.

Filed Under: 4th amendment, larry klayman, mass surveillance, nsa, richard leon, section 215, surveillance