Monthly Archives: January 2014


“Where are the Snowdens of yesteryear?”
Capt. John Yossarian

When I read the opening paragraphs of the first news story from the New York Times that surfaced on Google news about Judge Richard J. Leon’s opinon in Klayman et al. v. Obama, et al., “Federal Judge Rules Against NSA Phone Data Program” I felt vindicated and relieved.

When the Edward Snowden/NSA leak story first appeared in the Guardian I wrote a short piece about the classified FISA Court opinion that was published there and then re-posted that document. I did so in the event that might disappear from the Guardian site without notice for a number of reasons. I believed that this was a document that people needed to see and it should receive the widest possible circulation. Although no longer secret, the opinion was technically still classified. What was happening here was clearly illegal in my estimation.  I took the view that to classify and hide what is unlawful is also an unlawful act. I saw the FISC Order that allowed the bulk collection of phone records as being closely analagous to a general warrant.

As a result of publicly advocating this position early in the game, I was sure I was going to be labeled a “person of interest” who could now look forwad to being “selected for special screening” at the airport and having some part of my electronic life hacked as well.

Now finally there was not just another lawyer or concerned citizen who agreed with me, there was a Federal District judge on the D.C. Circuit who had issued a written opinion.  And so I went in search of a copy of the opinion to download and read.  What did it actually say?

Klayman I, as I will refer to it, is a thorough, scholarly, and well referenced opinion.  After reading it one feels that there is not much left to be said as to the Fourth Amendment questions raised by the topic of controversy.  That topic is, the NSA’s “Bulk Telephony Metadata Program.”
(Klayman et al. v. Obama et al., Civil Action No. 13-0851,filed 12/16/2013,
The Court finds that the Plaintifff’s have demonstrated a strong likelihood of success on the mertits of their Fourth Amendment claim.  The Plaintiffs are, in the Amended Complaint, Larry Klayman and Charles and Mary Ann Strange, both on behalf of themselves and “others similarly situated,” which would seem to include every Verizon subscriber for at least the last 5 years.  (In fact, by extrapolation, it could include everyone who was a cellphone subscriber during that time and up to the present.)

The Plaintiff’s constitutional claims are, generally speaking, that the Government, through the NSA’s Bulk Telephony Metadata Program, has violated their rights under the First, Fourth and Fifth Amendments to the Constitution.  The primary focus of the opinion is on the Fourth Amendment issues raised by the Program, because as noted above, the court finds that the Fourth Amendment claims are those most likely to succeed on the merits.  (Klayman I at 35). In addition, the plaintiff’s moved for a preliminary injuction to stop the Government from collecting and analyzing their particular phone records while the case is pending before the Court.

The headings of the opinion provide a clear roadmap of the questions considered by the Court. As a threshold issue, the plaintiff’s must have standing to challenge aspects of the Bulk Telephony Metadata Program.  Without standing, the inquiry would end there. (Clapper v. Amnesty Int’l USA 133 S. Ct. 1138 (2013))  “Accordingly, the plaintiff’s meet the standing requirements set forth in Clapper as they can demonstrate that the NSA has collected and analyzed their telephony metadata and will continue to do operate the program consistent with FISC opinions and orders.” (Klayman I at 42)

Having found the plaintiff’s have standing, the next question is whether the NSA’s collection and analysis violates the plaintiff’s Fourth Amendment rights.  The first question to be considered in that inquiry is whether or not a search has occurred.  If not, then once again the inquiry would end there.  If a Fourth Amendment search has occurred then the last question is whether the search was reasonable or unreasonable.  A reasonable search will be found lawful whereas an unreasonable search will not.  The Court frames the question in the following way at page 43 of the opinion.
“…whether plaintiff’s have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries analyzes and investigates that data without prior judicial approval of the investigative targets. (Klayman I, 43)

The Court ultimately finds that’s the NSA’s collection and analysis of metadata does constitute a search.  After very thorough consideration, the Court finds that “plaintiff’s have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation.” (Klayman I, 58 – 59.); and furthermore “…plaintiff’s have a substantial liklihood of showing that their privacy interests outweigh the Governments interests in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.” (Klayman I, 62).

The end result for now was that the Court granted the plaintiff’s Motion for a Preliminary Injunction but stayed that Order pending appeal “in light of the significant national security interests at stake and the novelty of the constitutional issues.” (Klayman, 6)

That’s basically an outline of the Fourth Amendment aspects of Judge Leon’s opinion. The full text of the opinion in Klayman et al., 0851 is a fascinating read that I highly recommend.