The United States Justice Department has filed a brief requesting that a federal appeals court overturn a decision issued last year, which found that the National Security Agency’s phone metadata program infringed upon the privacy of Americans.

Attorney Larry Klayman, founder of Freedom Watch, and Charles Strange, father of Michael Strange, an NSA cryptologist technician and Navy support personnel for SEAL Team VI who was killed in Afghanistan when his helicopter was shot down, were the plaintiffs in the lawsuit. They sought a preliminary injunction barring the government from collecting their phone records through the program operated under Section 215 of the PATRIOT Act.

On December 16, 2013, Judge Richard Leon of the US District Court for the District of Columbia ruled that the surveillance program violated the “degree of privacy” America’s founders “enshrined in the Fourth Amendment.” He called the technology used for the program “almost Orwellian” and, referring to the indiscriminate nature of “general warrants” that led to the Fourth Amendment, wrote, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”

“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” Leon added.

A preliminary injunction barring the government from collecting any of their phone metadata associated with their Verizon accounts was issued, and he ordered the government to “destroy any such metadata in its possession that was collected through the bulk collection program.” However, he stayed his court order pending appeal.

The Justice Department’s appeal [PDF] is noteworthy because it still refuses to accept that citizens or American customers of telecommunication companies have standing to challenge such surveillance.

“Plaintiffs have not established standing to sue or that they would suffer irreparable harm absent preliminary relief,” the brief declares. “There is no evidence that the government has ever collected any information about plaintiffs’ calls under the Section 215 telephony-metadata program.”

It then adds, “Plaintiffs Klayman and Strange aver that they are subscribers of Verizon Wireless, but provide no evidence that the government has ever acquired any business records from that company under the Section 215 program. The district court relied on the fact that the government has acknowledged that, for several months in 2013, it collected business records containing telephony metadata from Verizon Business Network Services. But that is not the same entity as Verizon Wireless.”

The government further argues, “Plaintiffs and the district court could only speculate about the identities of carriers who have provided in the past, and are providing now, business records under the Section 215 program. There is likewise no
evidence to support the district court’s further speculation that the government must be collecting all telephone records from Verizon Wireless based on the mere fact that the government has acknowledged that the Section 215 program is broad in scope.”

Leon found this argument to be curious, as it appeared to contradict claims that the bulk metadata collection program could function only because it “creates an historical repository that permits retrospective analysis of terrorist-related communications accessed as new terrorist-associated telephone identifiers come to light.”

The judge stated:

Put simply, the government wants it both ways. Virtually all the government’s briefs and arguments to this court explain how the government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism—in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers. Yet in one footnote, the government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!

The Justice Department also maintains that the plaintiffs have not established standing to sue based on their claims that the program “chills” or “might chill the activities of those who want to communicate with them.” They argue the “asserted chilling injuries are based on unexplained speculation.” However, if phone companies are collecting the records of millions of Americans, nobody knows who is swept up in that dragnet surveillance. There may very well be individuals who are not communicating with plaintiffs because they do not want their privacy to be violated.

Understandably, the government was particularly upset that Leon found a controlling precedent, Smith v. Maryland, to be outdated. That case had found pen registers to be constitutional, making a whole range of surveillance legally permissible.

But Leon suggested, “People in 2013 have an entirely different relationship with phones than they did thirty-four years ago. As a result, people make calls and send text messages now that they would not (really, could not) have made or sent back when Smith was decided.”

He noted the metadata program involves “creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”

In spite of this argument from the judge, it is still the government’s position that “telecommunications subscribers relinquish any cognizable privacy interest to information that they voluntarily convey to their telecommunications companies, which is then aggregated and maintained in the business records of those companies.”

And, remarkably, the Justice Department cites the Supreme Court’s decision in Amnesty v. Clapper, noting the court rejected the “plaintiffs’ speculation that their communications might be subject to surveillance” under the FISA Amendments Act of 2008 (FAA).

The Supreme Court did not decide to grant the plaintiffs in that case standing, however, the government made significant misrepresentations to the court in this case.

As highlighted by Senators Martin Heinrich, Mark Udall and Ron Wyden in a letter to Solicitor General Don Verrilli, it was not the policy of the government to notify defendants of evidence obtained under FAA. The government could collect communications “about” targets. They could go through “upstream” collection and collect content with email addresses associated with foreigners who are targets. This could mean that tens of thousands of domestic communications from Americans have been collected. However, it does not appear that the Supreme Court was informed of this reality, which would have increased the likelihood that Amnesty International and others would be granted standing to challenge the constitutionality of surveillance.

The Justice Department did manage to convince another court in another nearly identical case brought by the ACLU against this program that it was “lawful” and entitled to secrecy to operate it however they wanted. That ruling was issued weeks after Leon’s ruling.

If the Justice Department is so confident that what it is doing is constitutional, it should concede that the plaintiffs in this case have standing. It could only give the surveillance more legitimacy if the government prevailed. Yet, the Justice Department does not want the judiciary constraining executive power.

Creative Commons-Licensed Photo on Flickr by @jbtaylor