This may be a moot point in the long run, but it will have at least a short-term impact. The DC Court of Appeals has lifted a restraining order that prevented the NSA from collecting call records of Americans from telecoms. The main issue, as it has been in past challenges to the NSA’s program, is a lack of established standing:
The move lifts an injunction against the NSA’s collection that had been imposed –and temporarily stayed—by a District Court judge in December 2013.
In that ruling, U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, “demonstrated a substantial likelihood of success” in proving his Fourth Amendment right to privacy was violated and that the NSA program was likely unconstitutional.
But the appeals court reversed Leon’s judgment. Klayman, wrote Circuit Court Judge Stephen F. Williams, “lack[s] direct evidence that records involving their calls have actually been collected.”
In some ways, this decision is much less important now that Congress has passed a law that changes the way meta-data is collected by the government. If you remember, after a fierce battle, both houses of Congress voted in favor of a law that lets phone companies keep that data, but still allows the government to query it for specific data.
The court ruled that Judge Leon’s assumption that the plaintiffs had had their records collected did not rise to the evidentiary level needed for standing:
Plaintiffs’ contention that the government is collecting data from Verizon Wireless (a contention that the government neither confirms nor denies, Gov’t’s Br. at 38-39), depends entirely on an inference from the existence of the bulk collection program itself. Such a program would be ineffective, they say, unless the government were collecting metadata from every large carrier such as Verizon Wireless; ergo it must be collecting such data. Appellee’s Br. 27-28. This inference was also the district judge’s sole basis for finding standing. Klayman v. Obama, 957 F. Supp. 2d 1, 27 & n.36 (2013).
Yet the government has consistently maintained that its collection “never encompassed all, or even virtually all, call records and does not do so today.” Gov’t’s Br. at 39; Decl. of
Teresa Shea, NSA Signals Intelligence Director at ¶ 8, Addendum to Gov’t’s Br. at 101 (similar). While one district judge has claimed that “the Government acknowledged that since May 2006, it has collected this information for substantially every telephone call in the United States,” neither of his sources—an Administration “White Paper” and
a declaration by an NSA official—actually supports the claim.
In a concurrence, Judge Janice Rogers Brown concedes that they may not ever be able to make that case:
Of course, I recognize that, in order for additional discovery to be meaningful, one of the obstacles plaintiffs must surmount is the government’s unwillingness to make public a secret program. See United Presbyterian Church in the U.S.A., 738 F.2d at 1382; cf. ACLU, 493 F.3d at 655 (“In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped. Moreover, due to the State Secrets Doctrine, the proof needed either to make or negate such a showing is privileged, and therefore withheld from discovery or disclosure.”). It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead “what the citizen may know.” DANIEL P. MOYNIHAN, SECRECY: THE AMERICAN EXPERIENCE 59 (1999). Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate. Excessive secrecy limits needed criticism and debate. Effective secrecy ensures the perpetuation of our institutions. In any event, our opinions do not comment on the propriety of whatever privileges the government may have occasion to assert.
At some point, that becomes a tautology: You can’t assert standing because you don’t have evidence of damage, but you can’t get evidence of damage because you can’t get standing to review the records. Brown’s explanation is that government needs to keep some operations secret, and that’s a sacrifice that citizens have to bear. The correct venue for addressing abuses is primarily political in this explanation.
The political process has largely supplied criticism, debate, and reform. But that’s small comfort to those who can’t challenge the collection of private data when abuse may be taking place.