On Monday, November 9, Judge Richard Leon of the U.S. District Court for the District of Columbia ruled, in Klayman v. Obama, against part of the National Security Agency’s (“NSA”) surveillance program that collects domestic phone records in bulk.  Upon request by the Government, the U.S. Court of Appeals for the District of Columbia Circuit (Judges Tatel and Griffith) quickly stayed Judge Leon’s ruling on November 11 and ordered additional briefing.  With less than two weeks remaining before this NSA collection program expires and is replaced by updated procedures in the USA Freedom Act, it is unclear whether the case will ultimately become moot before a final judicial resolution can occur.  

The case dates back to 2013 when, after the leaks of Edward Snowden, a group of plaintiffs sought to enjoin the NSA from collecting their telephony metadata under its bulk telephone collection program (the “Program”).  Judge Leon granted an injunction but stayed it pending appellate review, which took place in November 2014.  The D.C. Circuit vacated the preliminary injunction in August 2015 on the ground that the plaintiffs had not shown a substantial likelihood of standing to pursue their claims because they were subscribers of Verizon Wireless, not Verizon Business Network Services (“VBNS”), which was the sole provider that the government acknowledged participated in the Program.  The plaintiffs were granted the right to amend their complaint.  In the amended complaint, they added plaintiffs who were VBNS subscribers and added a document in attempts to bolster their allegation that Verizon Wireless participated in the Program.  The additional document was a de-classified letter from the Department of Justice to the then-presiding Judge of the Foreign Intelligence Surveillance Court regarding a “Compliance Incident Involving In re Application of the [FBI] for an Order Requiring the Production of Tangible Things from . . . Cellco Partnership d/b/a Verizon Wireless.”  The plaintiffs interpreted this letter as confirmation that Verizon Wireless participated in the Program.  However, Judge Leon rejected their interpretation and found that the letter did not prove that Verizon Wireless participated in the Program.  Following the amended complaint, the plaintiffs filed a renewed motion for a preliminary injunction and successfully sought an expedited remand, thereby reinstating the D.C. District Court’s jurisdiction to decide the renewed motion. 

When evaluating whether a warrantless search is reasonable under the Fourth Amendment’s “special needs” doctrine, courts must balance the privacy interests implicated by the search against the government’s interest.  In his ruling on the renewed motion, DC District Court Judge Leon found that the newly added plaintiffs have a significant expectation of privacy in an aggregated collection of their telephony metadata.  Judge Leon stated that he could not find that the Program is effective in accomplishing the government’s goals “given the continuing lack of evidence” that it has been a successful means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.  Since the factors weigh “heavily” in plaintiffs’ favor, Judge Leon found that the plaintiffs likely will succeed in showing that the Program is an unreasonable search under the Fourth Amendment. 

He granted the renewed motion for preliminary injunction, but only for the newly added plaintiffs, J.J. Little and J.J. Little & Associates.  He found that the newly added plaintiffs have standing to challenge the collection and review of their telephony metadata under the Program.  However, the original plaintiffs (i.e., Larry Klayman, Charles Strange, and Mary Ann Strange) were not entitled to a preliminary injunction because they had not shown a substantial likelihood that their telephony metadata was collected pursuant to the Program. 

The Program is due to end on November 29, 2015 under the USA Freedom Act.  According to Judge Leon, “this case is perhaps the last chapter in the Judiciary’s evaluation of this particular Program’s compatibility with the Constitution,” but it will not “be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry.”  Judge Leon’s November 9th opinion may be found here.