“It’s a real problem that these national security cases really depend on leaks, as opposed to the government coming clean and explaining to the American people what it’s doing with their records,” [Cindy Cohn, EFF] said.
By Thor Benson truthdig.com September 5, 2015
Back in December of 2013, critics of massive government surveillance appeared to have won a victory in challenging the system in a case called Klayman v. Obama. U.S. District Judge Richard J. Leon of the District of Columbia stated that the National Security Agency’s bulk collection of metadata from telephones, a clandestine program exposed by Edward Snowden, was probably a violation of the Fourth Amendment. The case was brought forward by Larry Klayman, founder of the political advocacy group Freedom Watch, and Charles and Mary Strange, the parents of a Navy SEAL and NSA cryptologist who died in Afghanistan.
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However, at the end of August, an appeals court in the D.C. Circuit decided that the plaintiffs did not have adequate evidence that their data had been collected and never should have been allowed to pursue the case. Essentially, that court didn’t state that the NSA program was legal, but it suggested this case shouldn’t challenge the program’s legality.
The program in question, created under Section 215 of the Patriot Act, was reformed by congressional passage of the USA Freedom Act in June of this year. That law goes into effect in November. The Freedom Act restricts the federal government from indiscriminately collecting metadata in bulk; instead, the government has to request, from phone companies, certain data related to specific terms of interest. (We just have to hope the terms aren’t “hey” or “see you then” or the letter “A.”) The data will still be collected in bulk, but the phone companies, instead of the government, will be performing that function.
The case now goes back to the district court from the appeals court, and it’s unlikely it will be resolved before the USA Freedom Act takes effect, according to experts contacted by Truthdig. So what do these developments mean for the surveillance state in which we live?
“I think the decision is going to have little impact on bulk phone record collection but a very big impact on future civil litigation that is challenging secret government programs,” Steve Vladeck, a professor of law at American University Washington College of Law and co-editor-in-chief of Just Security, told Truthdig. Essentially, the reason the court ruled that the plaintiffs in Klayman v. Obama didn’t have standing to go forward with the case was because they could only provide evidence showing Verizon Business, a subsidiary of Verizon, had phone records collected in the metadata program. The plaintiffs were Verizon Wireless customers, so theoretically their data might not have been collected. That being said, many have argued the plaintiffs should have had standing in the case because a Freedom of Information Act request by The New York Times in August showed Verizon Wireless—not just Verizon Business—had given the data to the NSA under the program.
Vladeck said that since the USA Freedom Act takes effect in November, the way this court case turns out probably won’t affect the changes that will be made under the new law. However, the fact the government is asking plaintiffs, before even getting to court, to provide evidence showing their data was collected by a secret program could make it impossible to launch this kind of case in the future. “The thing that I thought always made the metadata program unique was that it only made sense as a surveillance program if the government was collecting everything,” Vladeck said. He believes that awareness of the broad strokes of the program means you can be reasonably sure your data was collected. Keith B. Alexander, then the director of the NSA, stated in 2013 that the NSA “need[s] the haystack to find the needle,” which would make one assume the haystack is the records of all telephone users.
One of the problems is that a Supreme Court case from 2013, Clapper v. Amnesty International, that focused on another surveillance provision decided that plaintiffs needed to definitively know their data was collected in order to pursue a case. The government would have to admit what the program does and whom it’s targeting before the case could go forward. Vladeck said it could become very difficult to challenge any practices allegedly approved by the USA Freedom Act if you can pursue a case only after you have all of the evidence to show you were spied on.
“I’m not aware of any other situation in law where you have to have the defendant admit what they did before you can even go to court,” Cindy Cohn, executive director at the Electronic Frontier Foundation, told Truthdig. “It would be as if the police couldn’t arrest somebody unless they admitted they committed the crime first.” Cohn and Vladeck both said that the U.S. Supreme Court has previously stated plaintiffs don’t have this kind of burden of proof to establish a court case and that it seems to be a practice reserved for secret spying programs.
“Given what the government has said about the scope of its program, there is certainly circumstantial evidence that exists,” Cohn said. “Many people are rotting in jail right now based on circumstantial evidence, and they never admitted their crime. It’s a double standard [being set up] in these cases.”
Cohn said for the programs approved by the USA Freedom Act to be challenged in the future, there probably would have to be a leak from inside the spy agencies. Until then, there won’t be enough evidence to definitively prove that the data of certain people has been collected. “It’s a real problem that these national security cases really depend on leaks, as opposed to the government coming clean and explaining to the American people what it’s doing with their records,” she said. “That’s what should happen. We should have a public debate about the government’s need for our records.”