On Friday, the U.S. Court of Appeals for the District of Columbia Circuit handed down its much-awaited ruling in Obama v. Klayman, one of several lawsuits challenging the legality of the NSA’s bulk collection of Americans’ telephone records. In 2013, the District Court for D.C. issued a preliminary injunction after it found the plaintiffs were “substantially likely” to show that the NSA was collecting their telephone records in violation of the Fourth Amendment to the U.S. Constitution. The D.C. Circuit disagreed with this conclusion, reversing the preliminary injunction and sending the case back to the lower court for further proceedings.
Although the D.C. Circuit’s decision in Klayman has major implications for future cases about government surveillance, it won’t immediately affect the NSA’s bulk collection program. When the District Court in D.C. granted the plaintiffs a preliminary injunction, the court decided to “stay” its preliminary injunction pending an appeal—meaning the NSA could continue its bulk collection while the lawsuit made its way through the federal courts. This process has taken longer than expected, with nearly two years elapsing since the preliminary injunction issued in December 2013.
Now that the D.C. Circuit has sent the case back to the District Court, the plaintiffs can continue their challenge to the NSA’s program by asking the court to “permanently enjoin”—that is, shut down—the program. However, chances are the court will never reach a decision in this case, because Congress enacted a law in June 2015—the USA FREEDOM Act—that requires the NSA to phase out its domestic bulk collection program by the end of November 2015. Now that the plaintiffs have exhausted their ability to seek expedited relief—that’s what the preliminary injunction was supposed to afford them—only three months remain until the NSA must stop collecting Americans’ phone records in bulk.
Therefore, barring the unlikely event the court resolves the case before late November, before the NSA’s bulk collection program shuts down, the Klayman challenge may well become moot. Under the USA FREEDOM Act, come November 29, 2015, the NSA has no choice but to end its bulk collection of Americans’ telephone records. Although it took an act of Congress, rather than a federal court, to bring about this outcome, the Klayman plaintiffs are slated to get what they originally sought two years ago: the end of bulk telephone records collection by the NSA. The District Court will probably dismiss the case once the NSA program ends, as federal courts have no jurisdiction to hear historical “cases or controversies.”
Nonetheless, as Steve Vladeck argues at Just Security, the D.C. Circuit’s decision in Klayman is interesting and potentially troubling for its treatment of the standing question—that is, whether the plaintiffs demonstrated that the NSA collected their phone records. Although the government did not dispute that Verizon Business Services had been ordered to give the NSA its customers’ telephone records, whether the NSA collected records from Verizon Wireless—a separate service to which the plaintiffs subscribed—was not clear when the District Court issued its decision. Thus, Circuit Judges Brown and Williams, writing separately, agreed that the plaintiffs had failed to meet the “higher burden of proof required for a preliminary injunction” in attempting to show that the government had collected their records. (Documents released by the NSA Inspector General’s office in response to a FOIA request from Charlie Savage of The New York Times suggest, but do not prove, that the NSA indeed obtained telephone records of Verizon Wireless customers.)
The important constitutional question raised in Klayman—whether the Fourth Amendment protects citizens’ metadata from unreasonable searches and seizures even when that data is transmitted to a third-party service provider—will remain unsettled for now. As the passage of the USA FREEDOM Act shows, Congress can write laws that go beyond the Constitution’s minimum requirements (whatever they are) in protecting Americans from government surveillance. But in the future, other forms of bulk data collection will surely emerge, some of which may already exist. It’s only a matter of time before courts must tackle the scope of Fourth Amendment protection in the digital age.