The anti-NSA case thats pushed farthest through the system is back in court today
In December, the federal district court for the District of Columbia ruled that the collection of bulk metadata likely violates the constitution, but the government appealed
Larry Klayman is as litigious as Barack Obama is American. Indeed, he was the tea-partier who challenged the validity of the presidents birth certificate in court. Taking on presidents is nothing new for the lawyerhe filed 18 lawsuits against the Clinton Administration. His latest suit against the Federal Government, filed in October, contends the Ebola virus is a biological weapon that Obama allowed into the country to support terrorist organizations against Jews and Christians.
Klayman was also one of the first plaintiffs to sue Obama and the National Security Agency for the collection of telephone metadata, an aspect of the secret surveillance program revealed by the documents leaked by Edward Snowden. So far, his suit has gone the furthest for the case against the program, though there are various cases challenging the NSAs metadata collection currently in the court system.
As previously reported here, any decision affecting the governments latitude to collect and analyze citizen information has implications for journalists and their sources. As it stands, any journalist who communicates with a source either targeted by the NSA or within two hops of a person flagged could have their own metadata analyzed by the agency.
Last December, Richard Leon, federal district court judge for the District of Columbia, held in Klaymans case that the collection of bulk metadata likely violates the constitution. In fact, in the 68-page judgment he calls the NSAs program Orwellian and said James Madison, author of the constitution, would be aghast. That judgment ordered the government to stop collecting information about the personal phone calls of the two plaintiffs and destroy records already made, pending the full trial on the constitutionality of the program. However, with a nod to the significant national security interests at stake in this case and the novelty of the constitutional issues, Leon put off the order while the government appealed.
That appeal is being heard Tuesday by the US Court of Appeals for the District of Columbia Circuit. According to court documents, Klayman will be arguing that the NSAs collection of metadata violates First, Fourth, and Fifth Amendment rights and will be asking the court to uphold the trial judges decision. The governments court documents suggest their argument will center on the idea the program is minimally invasive on constitutional rights, and that it serves the paramount government interest of combating terrorism. They say the metadata they review is the tiny fraction that is within one or two steps of contact of records concerning individuals who are reasonably suspected of association with terrorist activity.
The collection of telephone records is something the Electronic Frontier Foundation has cared about for a very long time, says Andrew Crocker, legal fellow at the EFF, in a telephone interview. As early as 2008, the EFF sued the NSA, questioning its practice of collecting telephone records, says Crocker, who notes the case is still in the court system.
Post-Snowden, the EFF assembled more cases against the NSA. Theyre representing the plaintiffs in First Unitarian Church of Los Angeles, et al. v. NSA et al, and they are also acting as a friend of the court in Klayman v. Obama, arguing along with the American Civil Liberties Union that the collection of telephone metadata is concerning for digital privacy rights.
The call records collected by the government are not just metadatathey are intimate portraits of the lives of millions of Americans, according to the jointly-filed brief by the EFF and ACLU. Specifically, it states the records can indicate political affiliations, health, habits, beliefs, and relationships. The argument uses the example of a call made at 3am to a suicide prevention hotlineeven without knowing the content of the call, the action is revealing, they say.
But in a world where information is collected daily, the maintenance of such a database by the government is not a very large intrusion on privacy, says constitutional scholar and Harvard Law professor Mark Tushnet in a phone interview. That kind of information and indeed much more is stored by large businesses, credit card companies, and everybody who does business on the internet. He says its companies that know more about our preferences and proclivities than the government. Id be more concerned about the maintenance of real data, by all these other entities, than metadata by the government, he says.
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The anti-NSA case thats pushed farthest through the system is back in court today