Appeals court to weigh NSA phone data program

A federal appeals court will hear arguments Tuesday in a case challenging the NSA's vast phone data collection program — the next act in the legal battle pitting the agency's antiterrorism efforts against the privacy rights of Americans.

Privacy advocates head into the arguments with a lower court victory in hand: A judge in Washington ruled in their favor in December, calling the technology to gather and analyze the phone records "almost Orwellian."


The lawsuit brought by conservative activist Larry Klayman is one of several filed after former NSA contractor Edward Snowden revealed the data collection program — a leak that has opened the way for judges to scrutinize the agency's surveillance activities, and could propel the issue to the Supreme Court.

"Whatever one thinks of Snowden, we're only here because of him," said Stephen I. Vladeck, a law professor at American University.


The National Security Agency, which is headquartered at Fort Meade, says it mines "telephony metadata" — the times of calls, numbers dialed and the duration of conversations — in search of links between people making calls in the United States and suspected terrorists.

The government says the technique respects Americans' constitutional right to privacy because the records already have been handed over to phone companies, and they do not include the contents of the conversations.

The American Civil Liberties Union and the Electronic Frontier Foundation have filed briefs in support of Klayman. Klayman said the NSA's "unconstitional acts … affect all segments of society."

"This case is unique in that both conservatives and liberals alike have joined to represent the American people," Klayman said in a statement.

The NSA referred questions about the case to the Justice Department. The Justice Department did not respond to a request for comment.

U.S. law enforcement, police and spies alike have raced to find ways to use information shed by criminals and terrorists as they move through the digital world.

The telephone program rests on laws that were approved by Congress but typically are subject to review only by the secret Foreign Intelligence Surveillance Court. Attorneys for the government stress that the so-called FISA Court has sanctioned it.

The government says the attacks of Sept. 11, 2001, revealed the limits of the information available to intelligence analysts. The NSA set to work on a comprehensive system for collecting phone records.


In an earlier ruling on Klayman's lawsuit, the judge cited a claim by an NSA official that such a phone data collection program could have detected contact between one of the plotters and a known safe house in Yemen.

But for all the thoroughly contemporary issues at stake in Klayman's case, the key Supreme Court decision cited by the government stems from a robbery investigation that took place in Baltimore in 1976.

Police in that case used a device that could gather phone numbers the suspect dialed on his land line. The high court ultimately ruled that the use of the device did not amount to a search because the suspect should have known the phone company collected his information to connect his calls. The justices ruled that the officers did not need a warrant.

Lawyers for the Justice Department argue in court filings that the same logic applies to the NSA program. They say it doesn't matter whether the subject of the data collection is a single robbery suspect or millions of Americans.

Privacy advocates dispute the government position that the metadata about the calls is fundamentally different from the content of the conversations. The advocates say the spies can glean much from that information.

The lower court judge, Richard J. Leon of the U.S. District Court in Washington, rejected most of the government's arguments. Leon ruled last year that the NSA's activities were likely unconstitutional.


"It's one thing to say that people expect phone companies to occasionally provide information to law enforcement," he wrote. "It is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."

He compared the information the Baltimore police gained about the robbery suspect to a few tiles in a mosaic — whereas the NSA program presents an entire picture.

Leon's ruling was preliminary, but he found that Klayman was likely to prevail in the case. Leon ordered the NSA not to collect information on Klayman and another plaintiff, but then stayed the ruling so the government could appeal.

Other judges handed early-stage victories to the government in two cases now on appeal.

Vladeck, co-editor of the blog Just Security, said the split between Leon and the other judges means the government can no longer claim that every judge who has examined the program has upheld it.

Mark Rumold, an attorney with the Electronic Frontier Foundation, which is representing clients in similar actions, said he would like to see Congress debate the surveillance programs. The law authorizing the phone collection is scheduled to expire in June 2015.


Even if the courts uphold the NSA program, University of Maryland law professor James Grimmelmann said, subjecting them to analysis by judges in open proceedings will have been worthwhile.

"That is a lot more democratically legitimate," he said.