By Eitan Arom
May 27, 2015 at 3:29 pm ET
In fact, recent developments in the courts and Congress have only emboldened the small army of civil liberty advocates and public interest lawyers suing the spy agency.
“What happened in the Senate is good in terms of our court cases, because the courts can now see that they have to step forward,” said Larry Klayman, a constitutional lawyer involved in two cases in the U.S. Court of Appeals in D.C. that challenge NSA spying techniques. “We now see that Congress is not the solution.”
In a session that dragged into early Saturday morning, the Senate failed to pass two pieces of surveillance legislation, including one that would have allowed the NSA to continue collecting large amounts of phone data. That followed a federal appeals court decision earlier this month that said the data-collection program is not justified by surveillance provisions in the Patriot Act that are set to expire on June 1.
Klayman is part of a platoon of litigants that has aimed its legal firepower at bulk phone records collection. Prominent among the organizations that have sued the NSA are the American Civil Liberties Union and the Electronic Frontier Foundation; both have sued over not only phone records collection but also other surveillance mechanisms, such as an NSA program that sweeps up large amounts of cross-border internet communication.
The Justice Department had justified the NSA’s phone-records program by pointing to a broad collection mandate in Section 215 of the Patriot Act that’s set to expire Monday.
But the Second Circuit Court of Appeals rejected that argument in a decision earlier this month, saying the program is not justified by the Patriot Act. The ruling was the latest development in ACLU v. Clapper, which aims to put limits on the NSA’s spying powers.
The court stayed an injunction against the program to allow for congressional action.
The Senate is set to reconvene Sunday, with some lawmakers expected to mount a last-ditch effort to renew the surveillance provisions. But some privacy organizations are already claiming victory.
“From our perspective, I think we can check the box on the ending of the bulk data collection,” said Marc Rotenberg, president and executive director of the Washington-based Electronic Privacy Information Center. “We’re feeling vindicated these days.”
In 2013, EPIC filed a petition with the Supreme Court arguing that Section 215 does not permit the large-scale vacuuming of phone records by the NSA revealed by Edward Snowden earlier that year. The petition was eventually dismissed.
For EPIC and other privacy advocates, the Second Circuit decision and Congress’s inability to reauthorize Section 215 have only strengthened their arguments against the phone records program.
For the Electronic Frontier Foundation, for instance, the development in the Second Circuit adds legitimacy to the group’s challenges of broad-based government spying, according to EFF civil liberties director David Greene.
In First Unitarian Church of Los Angeles v. National Security Agency, EFF argued in Northern California U.S. District Court on behalf of the plaintiffs that Section 215 does not justify the collection of their phone data, a line of reasoning validated in the Second Circuit decision.
The plaintiffs in that suit asked the court to shut down the NSA’s metadata program – a request that would become moot if the program isn’t renewed by Congress, according to legal experts.
But that doesn’t mean EFF prosecutors will simply call it a day. Instead, they’re likely to continue pressing for damages, which could force the courts to issue further rulings on NSA spying.
“Getting damages would require a finding that the program was illegal, which would be very helpful and have an impact on making sure the programs weren’t restarted under a different authority,” Greene said.
Klayman said he too would pursue damages.
In a motion filed Tuesday, Klayman asked the D.C. Circuit Court to consider the Second Circuit decision as a reason to expedite the ruling in a pair of cases collectively known as Klayman v. Obama.
“Our case isn’t going away,” said Klayman, who founded the conservative legal watchdog group Judicial Watch. “They’re going to have to make a ruling.”
He said he would seek to bring Klayman v. Obama before the Supreme Court if the D.C. Circuit fails to issue a binding injunction against the metadata program.
The Supreme Court could also be an appropriate authority to rule on the issue of the constitutionality of dragnet surveillance programs, a question that has gone unanswered in lower court cases and, according to the Second Circuit ruling, “an issue on which the Supreme Court’s jurisprudence is in some turmoil.”
A Supreme Court case could have a far-reaching impact on government surveillance. Indeed, lawyers and lawmakers have expressed skepticism that the NSA’s use of dragnet techniques is limited to phone metadata, or even to programs known to the public.
“There may be programs for text messages, credit card information, emails, that are not included under the Patriot Act,” Sen. Rand Paul (R-Ky.) said Tuesday on Fox News. Paul, a Republican presidential contender, has sued the NSA, seeking $1 in damages as well as an injunction against the phone records collection.
The NSA did not respond to a request for comment.
The Senate’s upcoming Sunday session will largely determine the fate of the NSA’s metadata collection. Majority Leader Mitch McConnell (R-Ky.) last week said the NSA’s Patriot Act authorities were “valuable tools needed to build a complete picture of terrorist networks and their plans.” But the interests aligned against it on Capitol Hill and in the courts are lowering the odds for reauthorization.
“Maybe McConnell doesn’t open his mail or his newspaper,” Rotenberg said. “But it looks like just about everyone else thinks the bulk metadata collection should end.”
Eitan Arom previously worked at Morning Consult as a reporter covering tech.