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