NSA Sidesteps Phone Data Collection Shutdown Before Nov. 29 Deadline

On Monday, the U.S. government managed to evade a federal court order that would have required the shutdown of its massive telephone record collection program. This occurrence is right before the Nov. 29 deadline implemented by Congress to end the program in line with the USA Freedom Act that was passed this summer.

The U.S. Court of Appeals for the District of Columbia Circuit halted the court order that would have ended the government’s bulk data collection on phone calls. The phone call metadata was mostly claimed to have been collected by Verizon Communications. The appeals court action now gives the government a chance to appeal, but it’s not likely to happen before the deadline of Nov. 29, when the original NSA program will end with the beginning of the USA Freedom Act anyway.

In 2013, the original lawsuit was filed by activist lawyer Larry Klayman, founder of government watch dog groups Freedom Watch and Judicial Watch and outspoken critic of the current presidential administration. The class action lawsuit was filed in federal court to force the government to end the surveillance program.

The class action lawsuit was refiled by the plaintiffs in January 2014 to attempt to accelerate the legal proceedings. In all, a total of three lawsuits were ultimately filed.

U.S. District Court Judge Richard Leon issued an injunction order in response to the first two lawsuits that intended to ban the government from collecting consumer metadata from Verizon Communications Inc.

Later that year, in August 2014, the federal government asked the U.S. District Court in Washington D.C. to dismiss one of three lawsuits that were filed by Klayman, who in addition to founding the government watch dog groups was also a former Justice Department antitrust attorney.

The government claimed that Klayman filed a lawsuit that was almost verbatim to a previous lawsuit and engaged in a process known as “claims splitting: maintaining more than one action involving the same subject matter at the same time in the same court and against the same defendants.”

Klayman has claimed that the government wanted to dismiss the claims so they could “avoid discovery, which would ultimately confirm further the government’s illegal secret schemes to the public.”

Klayman ran into a roadblock in August of this year where it was found by an appeals court that he was not a Verizon Wireless Business Network customer and thus could not prove that phone record data had been collected. Klayman added plaintiff J.J. Little (and his law firm) who was a VWBM subscriber.

A week ago, Judge Leon issued a preliminary injunction against the NSA on behalf of the recently-named plaintiff Little and his firm. Judge Leon found it was likely that Verizon’s VWBN involvement in the data collecting program continued. He also said that Little would likely be successful in demonstrating that the NSA program violated the Fourth Amendment prohibiting unlawful search and seizures.

The government asked Judge Leon to put the order on hold, however, he rejected the government’s request. The government took the case to federal appeals court, saying the only way they could stop collecting information on the phone numbers in question in the lawsuit was to shut down the program entirely, leaving an “intelligence gap.” The government said halting the program would not allow agencies the transitional period they needed to move to the new program on Nov. 29.

Little argued that removing the two names should not be too difficult, since Judge Leon told the government to prepare to remove the names in an order back in December 2013. Little stated, “Appellants cannot – and should not be able to – rely on the failed argument that it may be burdensome to avoid obeying the Constitution.”

Monday’s ruling by the three Circuit Judges came without further explanation.

Circuit Judges David S. Tatel, Thomas B. Griffith and Patricia A. Millett sat on the panel for the D.C. Circuit.

Klayman is representing himself and the other plaintiffs.

The NSA Data Collection Class Action Lawsuit is Klayman v. Obama, et al., Case No. 1:13-cv-00851, in the U.S. District Court for the District of Columbia. The NSA Data Collection Class Action Appeal is Klayman v. Obama, et al., Case No. 15-5307, in the U.S. Court of Appeals for the District of Columbia Circuit.