Court overturns ruling against NSA

A federal appeals court on Friday overturned a lower court ruling against the National Security Agency’s controversial collection methods.

The ruling from the three-judge panel of the D.C. Circuit Court of Appeals reverses the lower court’s decision, which in December of 2013 declared that the NSA’s bulk phone data collection was unconstitutional.

Judges offered separate opinions about the case, and one, David Sentelle, ordered that it ought to be dismissed. Judges Stephen Williams and Janice Rogers Brown declined to discuss the legality of the NSA’s program, and instead maintained that its opponents had not met the proper threshold for forcing a preliminary injunction, as the lower court had ordered a year and a half ago.

{mosads}Yet none of the judges offered support for the claims made by conservative legal activist Larry Klayman, who sued the Obama administration over the NSA’s bulk phone data program. His lawsuit was joined by the Electronic Frontier Foundation and the Center for National Security Studies.

The case concerns the NSA’s bulk collection of millions of Americans’ phone records, which was revealed by Edward Snowden more than two years ago. The program collects “metadata” about Americans’ phone calls, including the numbers involved in a phone call, how long it lasts and when it occurs — but not the actual content of people’s conversations.

Earlier this summer, Congress voted to effectively end that program and replace it with a system in which the government obtains a court order and searches private companies’ records for a narrower set of information. However, the NSA program is continuing in a similar form over an interim period that ends on Nov. 29.

Congressional critics of the government’s spying were aided in part by the lower court’s decision in late 2013, which declared that the NSA’s program was likely unconstitutional and “nearly Orwellian.”

The court at the time issued a preliminary injunction barring the NSA’s program, but said that it would not go into effect until after case had been appealed.

According to Williams, the groups involved in the lawsuit did not have the standing to sue the government because they “lack direct evidence that records involving their calls have actually been collected” in the NSA’s massive phone dragnet.

Though the NSA is believed to collect phone records about millions of Americans, the government has only ever publicly acknowledged targeting Verizon’s business arm. The challengers, however, are subscribers of Verizon Wireless — a distinct corporate entity.

“[I]n the face of the government’s representations that it has never collected ‘all, or even virtually all’ call records, I find plaintiffs’ claimed inference inadequate to demonstrate a ‘substantial likelihood’ of injury,” Williams wrote.

Brown, meanwhile, said that the plaintiffs had “met the bare requirements of standing” but nonetheless did not have enough evidence to meet the “higher burden of proof” to establish a preliminary injunction.

Sentelle, meanwhile, said he agreed with the decision to overturn the injunction, but wrote that the case ought to be dismissed — not sent back to the lower court for further proceedings.

Another federal appeals court declared the NSA program illegal earlier this year, in a high-profile decision that helped to spur congressional action to rein in the NSA. In that case, however, people suing the government had been subscribers of Verizon Business Network Services, eliminating concerns about standing.

In practical terms, the decision from the D.C. Circuit Court is likely to have little effect on the NSA. Given that the agency is scheduled to change its operations in a matter of months, the ruling serves only as a symbolic victory for supporters of the agency, who have criticized the courts’ willingness to interfere with its operations.

The three judges tackled the question of whether or not their ruling was a moot one in their ruling. Though the NSA’s program was originally scheduled to expire on June 1 — and it did, briefly, in part because of protests by Sen. Rand Paul (R-Ky.) — the resumption of operations until November makes the ruling appropriate, they declared.

“[P]laintiffs and the government stand in the same positions that they did before June 1, 2015,”  the judges wrote.

The White House maintained that the ruling did not impact its support for reforming the NSA.

“The president strongly believes in the reforms in the USA Freedom Act,” White House spokesman Josh Earnest told reporters Friday, referring to the legislation that ended the spy agency’s phone records program.

— Jordan Fabian contributed.

—This story was updated at 12:50 p.m.