A judge for U.S. District in the District of Columbia showed some indication Monday that issuing a preliminary injunction in a lawsuit to stop the NSA from mining American citizens’ personal electronic data is a real possibility in his court.
But, Judge Richard Leon also acknowledged that the matter probably won’t resolve until it’s reached the highest court in the land.
“I don’t know, frankly, how I’m going to come out,” said Leon after hearing arguments on both sides Monday. “I’m not kidding myself… it’s going to the court of appeals and probably to the Supreme Court – one way or the other.”
The lawsuit before Leon was filed in June by Larry Klayman, a former prosecutor in the Reagan Administration and former chairman of the nonprofit court monitoring group Judicial Watch, and two other plaintiffs. Klayman filed two similar suits only days after the NSA’s PRISM spy program was first made public by British newspaper The Guardian.
The suit alleges the government to have illegally spied on the plaintiffs’ Verizon Wireless devices in a violation of the Constitution “and also Federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association, and the due process rights of American citizens.”
Verizon, the NSA, the U.S. Department of Justice, President Barack Obama, Attorney General Eric Holder and others are named as defendants.
Reporting on Monday’s arguments, U.S. News assessed Judge Leon’s interest in the standing of the case, as well as the merits:
During the hearing Leon expressed concern about two areas of law. First, he questioned his authority to review Foreign Intelligence Surveillance Court decisions. The law establishing that court doesn’t provide for review by a U.S. District Court, he said. Leon also questioned whether the plaintiffs have standing to sue – an issue that derailed a case brought before the U.S. Supreme Court last year by Amnesty International.
On standing, Klayman said a leaked FISC order showed his clients’ Verizon phone records were collected, giving them standing.
[DOJ attorney James] Gilligan disagreed. That court order actually required a Verizon corporate entity that does not directly route calls to hand over information, he said, not Verizon Wireless – the provider used by plaintiffs.
“The government has not acknowledged the identity of any carrier,” he said.
“If the government holds all the cards,” Leon asked, “they could never establish standing, could they?”
…Leon expressed concern about his authority to declare unconstitutional the decisions of 15 federal judges serving on the FISC who authorized the NSA collection of phone records, but Klayman argued he has the authority – and responsibility – to do so.
“King George [III] had judges too,” Klayman said. “You, your honor, are the last bastion of protection for the American people. [We are] going into the only court we can be in.”
Leon at one point said a 1979 case that NSA and its proponents often fall back on to justify the legal basis for the agency’s surveillance practices may be outdated in the era of Big Data.
That case, Smith v Maryland, ended with a ruling that the defendant did not have a reasonable expectation of privacy “over a list of phone numbers dialed within a two-day period.”
“Things have changed a little since ’79. The technology that was being used in that case paled in comparison – paled in comparison – to the technology the NSA has at its disposal,” said Leon.