A top appeals court to hear why NSA metadata spying should stay or go

Further Reading On Tuesday, three judges at one of the nations most powerful appellate courts will hear oral arguments in the only legal challenge to result in a judicial order against the National Security Agencys (NSA) vast telephone metadata collection program. That order was put on hold pending the governments appeal in this case.

The District of Columbia Circuit Court of Appeals could overturn last years unusual lower court ruling that ordered an end to the program, or the court could confirm it.

The lawsuit, known as Klayman et al v. Obama et al, pits a longstanding conservative lawyer, Larry Klayman, against the American government and its intelligence apparatus. If Klayman wins, the suit is likely to be eventually appealed further to the Supreme Court.

Klayman filed his federal lawsuit at the District of Columbia District Court on June 6, 2013, the day after the first disclosures from the Snowden leaks were published. The very first story revealed that Verizon had been routinely handing over all metadata on its customers to the NSA. And as a Verizon customer, Klayman argued that his constitutional rights were violated as the result of such data handover, not to mentionthe rights of all other Verizon customers.

The government relied primarily, as it has done numerous times in similar cases, on a 1979 Supreme Court decision known as Smith v. Maryland. That case famously established the "third-party doctrine," holding that information (such as call metadata) disclosed to a third party (like Verizon) cannot be private as it was by definition shared with that third party. Therefore, the argument goes, it can be disclosed to the government without any violation of privacy.

ButJudge Richard Leon, a Republican appointee, agreed with Klaymans argument. He wrote in a December 16, 2013 memorandum opinion:

Indeed, the question in this case can more properly be styled as follows: when do present-day circumstancesthe evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companiesbecome so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now.

In sum, the Smith pen register and the ongoing NSA Bulk Telephony MetadataProgram have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.

Judge Leon ordered the government to immediately halt the Bulk Telephony Metadata Program and to destroy "any such metadata in its possession that was collected through the bulk collection program."But, he noted, "in light of the significant national security interests at stake in this caseand the novelty of the constitutional issues, I will stay my order pending appeal."

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A top appeals court to hear why NSA metadata spying should stay or go