What Does the Latest Court Ruling on NSA Telephone Metadata Program Mean?

What Does the Latest Court Ruling on NSA Telephone Metadata Program Mean?

Legal Sidebar
What Does the Latest Court Ruling on NSA Telephone
Metadata Program Mean?
09/03/2015
On August 28, the U.S. Court of Appeals for the District of Columbia Circuit, in Obama v. Klayman, ruled for the
government in the ongoing litigation over the National Security Agency’s (NSA’s) telephone metadata program. The
Klayman ruling, while arising out of the context of the government’s foreign intelligence gathering powers, did not
opine on the constitutionality of the NSA’s program. Instead, the decision focused on the procedural prerequisites
necessary for a federal court to exercise jurisdiction over the case in the first place. Specifically, the appeals court ruled
that the Klayman plaintiffs lacked standing to obtain a preliminary order barring the NSA from continuing the
telephone metadata program.
Arising from the D.C. District Court’s issuance of a preliminary injunction against the telephone metadata program in
December of 2013, the recent ruling from the D.C. Circuit comes after the short term lapse and subsequent 180-day
reauthorization of the statutory authority supporting the telephone metadata program. Central to the case is the issue of
constitutional standing, embodied in Article III of the Constitution, which provides that federal courts generally can act
only in the context of a “case-or-controversy.” That language that has been interpreted by the Supreme Court to require
that a person seeking judicial relief from an Article III court have a genuine stake in a case (i.e., an injury-in-fact that is
caused by the illegal action and is redressable by the judicial relief sought). Pursuant to the 2013 Supreme Court’s
ruling in Clapper v. Amnesty International, a plaintiff seeking injunctive relief to stop unlawful government conduct
bears the burden of proving that a concrete and particularized injury is “certainly impending” as a result of the allegedly
unlawful government action.
Amnesty International arose in the context of a challenge to a different foreign surveillance program – surveillance
conducted pursuant to section 702 of the FISA Amendments Act of 2008. The challenge in that case failed because the
plaintiffs, a group of lawyers and human rights activists who had clients that could be subject to section 702
surveillance, had “no actual knowledge” that the government targeted their communications and could only speculate
whether the government would imminently target their communications. The Klayman plaintiffs attempted to
distinguish Amnesty International on the grounds that they—unlike the Amnesty International litigants—had proof that
they were being subject to surveillance under the NSA metadata program. Namely, the Klayman plaintiffs argued that
they had suffered an injury because (1) the nature of the bulk metadata program meant that all telephone records—
including the plaintiffs’—needed to be a part of the program; and (2) the plaintiffs were customers of Verizon Wireless
and a leaked 2013 production order from the FISA Court indicated that the government was collecting phone records
from a sister company of Verizon Wireless, Verizon Business Networks.
The D.C. Circuit in Klayman disagreed with the plaintiffs and remanded the case to the district court. The per curiam
ruling, while unanimous in concluding that the plaintiffs had failed to establish standing necessary to obtain a
preliminary injunction against the government telephone metadata program, was fairly splintered, with all three judges
on the panel releasing separate opinions on the matter. Judge Janice Rogers Brown, had the first concurring opinion in
the case and concluded that while she felt the evidence proffered by the Klayman plaintiffs made the case
distinguishable from Amnesty International, the evidence proffered only made it “possible” that the government had
collected the underlying records, short of the burden needed to obtain a preliminary injunction – a “substantial
likelihood of success on the merits.” The remaining two Judges—senior Judges Stephen Williams and David Sentelle—
disagreed with Judge Brown’s assessment of the standing question, finding the case indistinguishable from Clapper.
Judge Williams concluded that while assertions had been made by the plaintiffs that the telephone metadata program
obtained all metadata from every major carrier, the government has “consistently maintained” that the collection is not

so comprehensive. Judge Williams also noted that, unlike in the recent decision of the Second Circuit finding the
telephone metadata program unlawful on statutory grounds, the plaintiffs in the instant case were not even customers of
Verizon Business Networks, making the Klayman plaintiff’s arguments about standing speculative and insufficient to
meet the burden for establishing Article III standing.
Judge Sentelle concurred in part and dissented in judgment, agreeing “with virtually everything in Judge Williams’
opinion,” save for one point—what to do with the case going forward. Because the appeal was centered on the district
court’s grant of a preliminary injunction and was not an appeal on the merits of the underlying complaint seeking
monetary damages and a permanent injunction, the question remained as to whether the Klayman plaintiffs could
continue to pursue their case despite their failure to meet their burden to prove the need for preliminary relief. Judge
Sentelle, noting that standing is jurisdictional, would have ordered the case dismissed entirely.
Judges Brown and Williams, while disagreeing as to the strength of the plaintiffs’ ability to demonstrate standing to
pursue the underlying case, agreed that the plaintiffs should have the opportunity to seek jurisdictional discovery to
determine whether their records were, in fact, subject to the NSA bulk metadata program. However, as Judge Brown
noted in her concurring opinion, there could be roadblocks to the plaintiffs demonstrating standing, as the evidentiary
privileges, like the state secrets doctrine, may prevent the Klayman plaintiffs from unearthing evidence about whether
they were targets in the metadata program.
While the results of limited discovery remain to be seen, it is also worth noting that recent amendments to the
underlying authority of the telephone metadata program were recently enacted as part of the USA FREEDOM Act, and
are scheduled to go into effect in late November. Those amendments generally require the relevant collection activities
to be limited “to the greatest extent reasonably practicable” by a “specific selection term.” Insofar as these pending
changes in law require narrowing of NSA’s collection activities, those changes may further impede these and other
plaintiffs’ ability to demonstrate that collection of their telephone records is “certainly impending” to a degree
sufficient for Article III standing.