Federal Court Grants Injunction Against NSA Bulk Telephony Metadata Program

By Jeralyn, Section Civil Liberties
Posted on Mon Dec 16, 2013 at 06:52:05 PM EST
Tags: NSA warrantless surveillance (all tags)

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A federal judge in the District of Columbia has granted a request for a preliminary injunction against the NSA preventing them from bulk collecting and querying of telephone record metadata, finding it likely violates the Fourth Amendment.

The opinion is here.

In a 68-page ruling, Judge Richard J. Leon of the District of Columbia called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“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,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

[More...]

The Judge stayed the effective date of the order pending a Government appeal.

The suit was brought by conservative public interest lawyer Larry Klayman. Klayman intends to make the case a class action.

In the opinion, the Judge describes the NSA program:

In broad overview, the Government has developed a "counterterrorism program" under Section 1861 in which it collect, compiles, retains, and analyzes certain telephone records, which it characterizes as "business records" created by certain telecommunications companies (the "Bulk Telephony Metadata Program"). The records collected under this program consist of"metadata," such as information about what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted.

According to the representations made by the Government, the metadata records collected under the program do not include any information about the content of those calls, or the names, addresses, or financial information of any party to the calls.

...Through targeted computerized searches of those metadata records, the NSA tries to discern connections between terrorist organizations and previously unknown terrorist operatives located in the United States.

As for a definition of metadata, the Judge writes:

"For purposes of this Order 'telephony metadata' includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call."

The program has been in effect for 7 years.

On cell site locator information, the Court says in a footnote:

While more recent FISC opinions expressly state that cell-site location information is not covered by Section 1861 production orders, ... the Government has not affirmatively represented to this Court that the NSA has not, at any point in the history of the Bulk Telephony Metadata Program, collected location information (in one technical format or another) about cell phones

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Federal Court Grants Injunction Against NSA Bulk Telephony Metadata Program | 43 comments (43 topical)

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"suit brought by a conservative lawyer" (5.00 / 1) (#1)
by Mr Natural on Mon Dec 16, 2013 at 07:06:29 PM EST

Holidays are a good time to remember that we've more in common than our differences.

It shows (4.25 / 4) (#19)
by lentinel on Tue Dec 17, 2013 at 10:52:17 AM EST

how meaningless the terms liberal and conservative have become - if they ever had meaning to begin with.

How can the snooping by the NSA, said by Mr. Obama to be but a mere "inconvenience", be called a liberal endeavor?

Either one is out to protect the privacy of the individual, or one isn't. It matters not what label or what party one belongs to.

If people labeled as Republican conservatives are interested in restoring our privacy rights, more power to them.

Conversely, if people labeled as Democratic liberals, are out to destroy or weaken those rights, to he!! with them.


Really? (none / 0) (#27)
by Politalkix on Tue Dec 17, 2013 at 08:07:19 PM EST

"If people labeled as Republican conservatives are interested in restoring our privacy rights, more power to them."

Restoration of privacy rights or the first step in the road towards privatization of the NSA?

Privatized prisons, privatized NSA!

"So we should do with national security for what we long ago called for in Cyber Security -- outsource the first line of defense.

The federal government absolutely should not be unilaterally seizing and storing this unfathomable amount of information, let alone allowing thousands of low-level staffers to search it whenever they alone decide.

The solution? Rather than forcing communications companies to turn over the data -- why not pay them to store and search it?

There is no Fourth Amendment violation until the government seizes it -- this preempts that. These companies already have it, so the government wouldn't have to do something to get it like tap directly into servers -- as they're already doing with (at least) nine Internet companies.

Pro-data-grab politicians say the government uses the data and its search capabilities for things like finding American citizens who are interacting with identified international terrorists. The private companies can easily do these searches when asked by the government.


: Progress... (5.00 / 2) (#28)
by lentinel on Wed Dec 18, 2013 at 02:43:03 AM EST

I see that you have left a "2" as a downrating instead of the usual "1". I'm flattered.
How you morph my comment that I don't care about the label attributed to someone who is interested in preserving or restoring our right to privacy into a discussion of who should or can do the collecting or organizing of the data escapes me.
The alternative, abandoning the collection of these personal data does not seem to be on the table for you.
To put it simply, if I make a phone call to someone overseas, or write an email, write a comment on a blog, do a google search, or order a refrigerator, I would rather have it be left at that and not have it be made part of a massive sweep by anyone.
If that position is championed by someone in or out of government, "conservative" or "liberal", I say amen.

Which some of us have always said (none / 0) (#3)
by Politalkix on Mon Dec 16, 2013 at 07:21:07 PM EST

but then the hypocrites want to keep the divisions alive till they get a ruling that they like!


who are you talking about? (none / 0) (#4)
by ZtoA on Mon Dec 16, 2013 at 07:39:08 PM EST

People (none / 0) (#6)
by Politalkix on Mon Dec 16, 2013 at 08:35:33 PM EST

on both sides of the political spectrum who deny the legitimacy of any ruling or argument made by someone from the opposite side if they do not like the ruling or argument.

There is no point in singling out any commenter(s) by naming names. We all know who these people are.

Let us not derail the more important issue of this ruling with this side talk. I do think that this is a good development considering the long term interests of the United States.


: no one is denying the legitimacy (5.00 / 5) (#8)
by Jeralyn on Mon Dec 16, 2013 at 09:04:04 PM EST

of the ruling. Liberal groups also filed lawsuits about the program, the Judge chose to rule on this one.
I happen to know Larry Klayman, and thought it was interesting that the case was brought by a conservative. It shows that objections to the NSA program is very widespread and crosses party lines.
Please refrain from commenting about other commenters. Your comments will be deleted. It's unnecessary and distracting.

What was his standing? (none / 0) (#5)
by Peter G on Mon Dec 16, 2013 at 07:39:52 PM EST

In other words, how did he prove that his calls were monitored? Just by alleging that everyone's are bulk-collected?


: the judge explains standing in the ruling (5.00 / 1) (#7)
by Jeralyn on Mon Dec 16, 2013 at 09:00:35 PM EST

He only had standing for one of the two lawsuits he filed. I'm drafting motions due by midnight or I'd give a fuller reply.
Peter, I'm citing one of your recent wins in one of my motions -- Castro in the 3rd Circuit -- great job! (on the false statement issue of whether it's a crime if the defendant intended to lie but unbeknownst to him, the statement was literally true.

: - from the Guardian (5.00 / 2) (#9)
by Mr Natural on Tue Dec 17, 2013 at 12:48:10 AM EST

i In a ruling likely to influence other federal courts hearing similar arguments from the ACLU, Leon wrote that the Guardian's disclosure of the NSA's bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
i "The government asks me to find that plaintiffs lack standing based on the theoretical possibility that NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function," Leon wrote. "Candor of this type defies common sense and does not exactly inspire confidence!"

This explains... (5.00 / 4) (#14)
by kdog on Tue Dec 17, 2013 at 09:21:46 AM EST

the pr infomercial the NSA aired on CBS Sunday night, the NSA wanted to get out in front of the Monday ruling.

I hope CBS at least got the going rate for advertising from the NSA budget for that 28 minute disgrace.

Juan Cole's dissection of the farce: (5.00 / 4) (#15)
by Mr Natural on Tue Dec 17, 2013 at 10:24:16 AM EST

Not a single critic of the NSA was shown during the entire episode. Seriously. Not a single claim by the NSA was refuted or pushed back on. At all. Basically, Miller served up softballs, the NSA hit 'em back, and the "investigative journalists" at 60 Minutes said, "Wow, isn't that amazing!"

Predictably... (5.00 / 2) (#16)
by kdog on Tue Dec 17, 2013 at 10:29:23 AM EST

the faux-reporter John Miller is rumored to be getting back into the tyranny racket at the NYPD.

His work is done in "journalism"...lol.


: I'm not suprised (none / 0) (#35)
by Jeralyn on Thu Dec 19, 2013 at 01:32:32 AM EST

He and Bratton are close.

Miller has twice left the news business to serve under Bratton, first in the NYPD and later during the veteran top cop's stint as commissioner of the Los Angeles Police Departme

60 minutes (5.00 / 4) (#17)
by TeresaInSnow2 on Tue Dec 17, 2013 at 10:42:57 AM EST

is a rag now.


It was absolutely embarrassing. (none / 0) (#43)
by AmericanPsycho on Thu Dec 19, 2013 at 08:52:00 PM EST

I could barely sit through the whole thing. I would have rather watched 5 hours of Kevin Trudeau lying to me about weight loss and miracle cures.


Coworker: Snowden was a genius (5.00 / 1) (#20)
by Mr Natural on Tue Dec 17, 2013 at 10:54:19 AM EST

Perhaps Edward Snowden's hoodie should have raised suspicions.
The black sweatshirt sold by the civil libertarian Electronic Frontier Foundation featured a parody of the National Security Agency's logo, with the traditional key in an eagle's claws replaced by a collection of AT&T cables, and eavesdropping headphones covering the menacing bird's ears. Snowden wore it regularly to stay warm in the air-conditioned underground NSA Hawaii Kunia facility known as "the tunnel."

A 60 Minutes episode Sunday night, meanwhile, aired NSA's officials descriptions of Snowden as a malicious hacker who cheated on an NSA entrance exam and whose work computers had to be destroyed after his departure for fear he had infected them with malware.

The takeaway: Those in charge of keeping the entire world "safe" are incapable of keeping themselves "safe", and can't prove, at any point in time, whether or not they are "safe."

Federal Judge Richard Leon (5.00 / 2) (#26)
by KeysDan on Tue Dec 17, 2013 at 02:56:49 PM EST

has let the genie out of the mass surveillance bottle--no matter the final disposition. The secrecy of it all has been pierced in a true court of law. And, in order to reach a decision, the judge ruled that the plaintiffs had the capacity to challenge the collection of data and the searches of that data by the government--the underpinning to which is traceable to Edward Snowden.

Hopefully, President Obama will use this case as a barometer for real reform jettisoning tactics such as dusting off and injecting steroids into the 1917 Espionage Act and, essentially, stalking reporters for sources. The old ploy of appointing a "blue ribbon" committee of friends and supporters also needs to go.

Although, the programs are so invasive as to make more than James Madison aghast (as the Judge noted), this review committee with buddies such as Cass Sunstein, the UN Ambassador's husband, and Geoffrey Stone, U of Chicago Law School Dean and scout for an Obama Library, come up with some constructive recommendations, should they survive the White House's green eye shades.

While not yet made public, one recommendation is reported as taking NSA from its military control to civilian. And, to separate the surveillance programs and cyber command operations, now under direction of a singel military commander. A good start would be for the president to consider Edward Snowden as a whistleblower, and to follow-up on the NSA idea that amnesty for Snowden is "worth having a conversation about."

I Think History... (5.00 / 1) (#29)
by ScottW714 on Wed Dec 18, 2013 at 10:27:52 AM EST

...will look back at this period of time harshly, like the McCarthy era, and Snowden will be viewed by nearly all as a man of men. The person mostly responsible educating the world and bringing in the end of a dark era in America.

Or maybe it's just wishful thinking, I had the same thoughts about GWB, with Obama being the man to end another dark era.


Yes, after President Bush (5.00 / 1) (#30)
by KeysDan on Wed Dec 18, 2013 at 12:52:32 PM EST

left our foreign relations in tatters, it seemed that restoring and refurbishing those relationships would be President Obama's opportunity and strength. Yet, for example, Brazil was a leading target of NSA and has reacted angrily. The revelations of surveillance of President Dilma Rousseff, her inner circle of senior advisers and Petrobras, Brazil's national oil company resulted in Ms Rousseff calling off a state visit to Washington last October.


Hitting'em where it hurts........ (5.00 / 1) (#31)
by NYShooter on Wed Dec 18, 2013 at 08:43:19 PM EST

In the wake of Edward Snowden's NSA leaks, it was widely predicted that American tech companies would pay a price for the bad publicity in international markets. According to one industry group's estimate from August, the U.S. cloud computing industry stands to lose $22 billion to $35 billion over the next three years.

So far, we've seen Brazil consider legislation to force Google to locate its data centers within the country and Germany's interior minister warn his citizens not to use services like Facebook, Google, and Microsoft if they don't want the U.S. government spying on them.

But the first company to directly lose out on business in the wake of the NSA revelations may not be an Internet firm at all. The Brazilian government announced today that it was awarding Saab a $4.5 billion contract to develop 36 fighter jets over Boeing. Reuter's reports:
Boeing was considered the likely victor until earlier this year when revelations of spying by the U.S. National Security Agency on Brazilian telecommunications data, including the personal telephone calls and emails of Rousseff herself, led Brazil to believe that it could not trust an American company.

"The NSA problem ruined it for the Americans," the Brazilian government source said on condition of anonymity.

If true, this is an indication that the business fallout of the NSA revelations will go beyond the tech industry.

: Bluster from the "anonymous source" (none / 0) (#34)
by Politalkix on Wed Dec 18, 2013 at 11:24:02 PM EST

The Brazilian defense minister, Celso Amorim, told reporters at a news conference in Brasilia that Saab was selected over Boeing because it had agreed to share more technology with contractors and because many parts for the new jet, the Gripen NG, would be made in Brazil.
The decision "took into account performance, the effective transfer of technology and costs, not only of acquisition, but also of maintenance," Mr. Amorim said in a statement. He was accompanied by Gen. Juniti Saito, the Brazilian air force's chief of staff. "The decision was based on these three factors."

Section 215 (none / 0) (#2)
by Politalkix on Mon Dec 16, 2013 at 07:17:23 PM EST

"Vladeck said 15 judges on the Foreign Intelligence Surveillance Court have examined Section 215 of the Patriot Act, the provision of law under which the data collection takes place, without finding constitutional problems. "There's a disconnect between the 15 judges on the FISA court who seem to think it's a no-brainer that Section 215 is constitutional, and Judge Leon, who seems to think otherwise."" link
The judicial opinions of the 15 judges on the FISA court were pooh-poohed by many because all of them were appointed b conservative chief justices.

However, Judge Leon is also an appointee of President GWB. He is also representing Larry Klayman of Judicial watch.

I think that it is a good development. People can debate the issues involved. I have a feeling that it will eventually go to the Supreme Court.

: None of those cases before the FISA court (5.00 / 5) (#10)
by scribe on Tue Dec 17, 2013 at 04:02:23 AM EST

was an "adversary proceeding" and they are entitled to no deference.
In short, in those cases before the FISA court, there was only one party present - the government - and no adversary party there to point out "hey, you're full of baloney". Indeed, the opinions we've seen so far indicate the FISA court judges were actually helping the government craft their applications.
So, the FISA Court opinions are worthless other than as a historical record of what the government said and when it said it.

Klayman: "We hit the mother lode." (none / 0) (#11)
by Mr Natural on Tue Dec 17, 2013 at 08:58:06 AM EST

"It was the biggest decision in the context of the government in my lifetime. This is the most outrageous invasion of constitutional rights I've seen in my life."

He might want to wait (none / 0) (#12)
by jbindc on Tue Dec 17, 2013 at 09:11:57 AM EST

before he continues to crow.

Darren Hutchison at Dissenting Justice lays out a very good argument about how an appeals court could overturn the prelimiary injunction without ever ruling on the Fourth Amendment issues:

While these procedural concerns might not mean much for laypersons, they are central to the case at this moment. In fact, an appeals court could overturn the ruling without even discussing the Fourth Amendment. How?
In order to get a preliminary injunction, the plaintiff must meet four factors: a likelihood of success on the merits (likely that the law favors the plaintiff); irreparable injury in the absence of the injunction (harm that monetary compensation cannot remedy adequately); public policy favors issuance of the injunction; and the balance of the equities favor the plaintiff (in the absence of an injunction, plaintiff would lose a lot more than the defendant would gain from having the liberty to enforce the policy). A plaintiff much demonstrate each factor in order to qualify for the injunction.
There are at least two ways to reverse the injunction without turning to constitutional issues (related to the Fourth Amendment). First, the Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated the letter of the law. National security could provide a basis to reverse the injunction.

SNIP

Furthermore, the opinion does not even contain a section that "balances the equities" by weighing the harm to the plaintiffs in the absence of the injunction against the harm to the defendant if the injunction is affirmed. This, however, is a mandatory part of the test.

'Procedural Concerns"... (none / 0) (#13)
by kdog on Tue Dec 17, 2013 at 09:17:20 AM EST

the last refuge of scoundrels.


I wouldn't say that around here (5.00 / 2) (#18)
by jbindc on Tue Dec 17, 2013 at 10:47:58 AM EST

Many a criminal defendant gets off because of "procedural concerns." Also known as "technicalities."

Kinda popular with criminal defense attorneys, doncha know? :)


The procedural concerns... (none / 0) (#21)
by kdog on Tue Dec 17, 2013 at 11:07:58 AM EST

you're talking about result from violations of procedures meant to protect individual rights and the rights of the accused...not exactly the case here with the NSA jb. Nobody's liberty is on the line...except maybe ours.


You don't get to pick the parties (none / 0) (#22)
by jbindc on Tue Dec 17, 2013 at 11:11:31 AM EST

who get to enjoy "procedural concerns".

Just because you don't like the NSA or what they are accused of doing, doesn't mean the rules don't have to be followed in this case.


If we had something... (5.00 / 1) (#23)
by kdog on Tue Dec 17, 2013 at 11:17:51 AM EST

resembling equality under the law you'd have a point...but we don't.

A lawless unaccountable organization like the NSA, and by extension the entire federal government, clinging to procedural rules is very weak tea...ymmv.


I'm not disagreeing with you (none / 0) (#24)
by jbindc on Tue Dec 17, 2013 at 12:44:17 PM EST

But I'm pointing out that you can't be for "procedures" only when they work for people or organizations you agree with or with whom you think is getting a raw deal. Otherwise, your whole theory about "equality under the law" is just blowing smoke.


I hear ya... (none / 0) (#25)
by kdog on Tue Dec 17, 2013 at 12:58:57 PM EST

when we have that ever-elusive equality under the law, I'll drop my objection to the NSA's objection on procedural grounds.

Till then, I think the NSA has some pair to wanna have their cake and eat it too.


It should be pointed out (none / 0) (#32)
by NYShooter on Wed Dec 18, 2013 at 09:19:08 PM EST

that these terms, "procedural concerns," aka "technicalities," have been used as "straw men" arguments by certain people with not-so-pure agendas as being synonymous with guilty people "getting off" because of some silly ruling such as using a colon instead of a semi-colon. (Why does Fox News pop into my mind?)
"Procedural concerns," or, "technicalities," often means that a defendant was denied his/her due process in court. Failure to turn over exculpatory evidence is a "procedural concerns / technicality." So is coercing an untrue confession.

You even hear this misplaced complaint in sporting events: "We would have won the game if that stupid ref hadn't called the touchdown back because of a dumb "technicality." Of course, the receiver wouldn't have been open for the reception if the lineman hadn't been guilty of "holding."

In other words, there's nothing frivolous about "technicalities." It usually means you violated the rules.....and, got caught.


But not always (none / 0) (#36)
by jbindc on Thu Dec 19, 2013 at 07:34:49 AM EST

"Procedural concerns" could mean that a defendant was denied his/her due process rights, but it could also mean that someone missed a filing deadline.

And that goes both ways - there have been many cases of of defendants complaining about "procedural concerns" or "technicalities". (the thing that comes to mind at this instant is the "Opening of the door" in testimony - where a witness mentions one thing, and that opens the door to a whole host of other evidence that wouldn't normally get admitted tht hurts a defendant's case).

And of course, while everyone should play by the rules, we all know that "procedural concerns" have nothing to do with someone actually being guilty / not guilty (or, in a civil case, being liable / not liable).

In the case we are talking about, kdog was didn't like the argument that showed how the government could get this preliminary injunction overturned because of "procedural concerns", wherein he usually enjoys it when "procedural concerns" get cases or restraints thrown out.


You're correct (none / 0) (#39)
by NYShooter on Thu Dec 19, 2013 at 12:13:50 PM EST

in explaining how "technicalities" can swing both ways.

My point was that automatically equating "Procedural concerns" with some slimey "attorney tricks" is untrue, and, unfair.

Nobody said that "lawyering" was easy.


I don't recall saying that (none / 0) (#40)
by jbindc on Thu Dec 19, 2013 at 12:16:14 PM EST

Please show me where I called them "attorney tricks."


: Please show me (5.00 / 1) (#42)
by NYShooter on Thu Dec 19, 2013 at 07:39:26 PM EST

where I said you did.
Jeez, jbindc, paranoid much?
This is exactly the issue discussed here recently. It seems no one can make a generic comment where someone doesn't accept it as a challenge to fight.

Putin: Snowden is "noble." (none / 0) (#37)
by Mr Natural on Thu Dec 19, 2013 at 10:33:36 AM EST

"When I faced this I was curious about how he had made this decision. He is a rather young man. What does he have? He had nothing. How is he going to live, where is he going to live?" Putin said at a marathon annual press conference on Thursday.
"He made a noble but difficult choice for himself," Putin said about Snowden's whistleblowing revelations.
"Thanks to Snowden, a lot has changed in the minds of people around the world, including politicians. And this is certainly his merit," Putin said while stressing: "We don't help him or hinder him, we just gave him asylum."

Let it Snowden, let it Snowden, let it Snowden (5.00 / 1) (#44)
by Peter G on Thu Dec 19, 2013 at 09:31:20 PM EST

It's beginning to look a lot like Christmas.


Funny comment (none / 0) (#38)
by jbindc on Thu Dec 19, 2013 at 10:45:20 AM EST

Considering one of Putin's jobs was to spy on students at Leningrad State University and to be on the lookout for other recruits to the KGB.


: And, what a mind-altering dance by Mr. KGB, huh? (none / 0) (#41)
by christinep on Thu Dec 19, 2013 at 01:09:22 PM EST

Old Putin plays it ten ways from Sunday. Mr. Benevolent is releasing all sorts of his prisoners these days ... getting ready for Sochi, I'd say.