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MOSCOW, December 17 (RAPSI, Ingrid Burke) - A US federal court issued an injunction Monday barring the US government from collecting plaintiffs’ data in accordance with a US National Security Agency (NSA) surveillance program revealed to the world by fugitive NSA whistleblower Edward Snowden.
Although due to national security concerns the injunction has been stayed pending appeal, presiding Federal Judge Richard Leon of the US District Court in Washington DC stated: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” adding that James Madison – viewed widely as the "Father of the US Constitution" – would be “aghast.”
The Klayman lawsuits challenged the legality of intelligence-gathering practices involving the wholesale collection of US citizens’ phone record metadata.
The opinion notes that it pertains to two of several related lawsuits, adding that US civil-rights advocacy group the American Civil Liberties Union (ACLU) has advanced similar claims in a complaint filed with a federal court in New York.
All of these related claims have emerged from a series of public disclosures in recent months connected with surveillance and intelligence-gathering activities carried out by the NSA in cooperation with certain telecommunications and internet providers. The five plaintiffs in the Klayman lawsuits are US citizens and users or subscribers of relevant telecommunications and internet providers.
The court considered on Monday two motions for preliminary injunction, wherein the Klayman plaintiffs sought to bar the defendants from collecting their telephone records, to compel the defendants to destroy any pre-existing records collected in accordance with the program, and to prohibit the defendants from using the plaintiff’s phone numbers to query the metadata obtained through the program.
The injunction requests were seen as applicable only to the federal government defendants and only in connection with the bulk collection of telephone record metadata. Furthermore, only two of the plaintiffs were dealt with in resolving the motions – as only two of them were found to actually have been telephone service subscribers.
Citing a lack of jurisdiction, the court refrained from considering the statutory issue advanced by plaintiffs, but moved forward with the constitutional challenges.
The court then granted in part the motion for a preliminary injunction in the first Klayman lawsuit, concluding: “that plaintiffs have standing to challenge the constitutionality of the Government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of the Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.”
Citing national security concerns, however, the court stayed the order pending appeal.
Specifically, according to the order, the plaintiffs allege violations of their individual rights by the government under the First, Fourth, and Fifth Amendments of the US Constitution, as well as the statutory violation that the court rejected over jurisdictional issues.
The First Amendment protects the freedoms of religion, speech, the press, and assembly, as well as the right to petition the government.
The Fourth Amendment protects against unreasonable searches and seizures, and imposes the requirement that warrants should be supported by probable cause and an oath or affirmation, and should describe a place to be searched or the persons and things to be seized with particularity.
The Fifth Amendment guarantees due process of law, and protects against double jeopardy and compelled self-incrimination.
In his concluding remarks, Judge Leon reflected on the fact that this, “is yet the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable.”
He went on to summarize his findings – which again, are tempered by a stay of the order pending appeal – as follows: “I will grant [the plaintiffs’] requests for an injunction and enter an order that (1) bars the Government from collecting, as part of the NSA’s Bulk Telephony Metadata, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program.”
The Snowden leaks
The opinion notes that the lawsuit was brought on June 6, 2013. One day earlier, The Guardian reported on the first of a number of leaks for which former NSA contractor Edward Snowden would ultimately claim responsibility.
This first story featured a leaked order by the Foreign Intelligence Surveillance Court (FISC) ordering Verizon Business Network Services to provide the NSA on “an ongoing daily basis… all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”
The heavy-on-the-tongue, but recently ubiquitous term “telephony metadata” refers to “comprehensive communications routing information, including but not limited to session identifying information…, trunk identifier, telephone calling card numbers, and time and duration of call,” according to the FISC order. Notably, the following items fall outside of the term’s scope: “the substantive content of any communications…, or the name, address, or financial information of a subscriber or customer.”
Monday’s court order cited The Guardian article, which stated that the order demonstrated “that under the Obama administration, the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.”
The court noted that in the present litigation and through public statements, the US federal government has confirmed the existence of a program according to which the FISC can order the FBI to direct specific telecommunications service providers to produce call detail records to the NSA.
The order mentioned that this initial June 5 media report was followed up with numerous other revelations of US government surveillance programs.
Notably, Snowden fled Hawaii – where he had been living and working as an NSA contractor – for Hong Kong in June. After admitting that he had escaped prepared to blow the whistle on NSA surveillance programs, Snowden told The Guardian in a Question & Answer story that he was motivated by the following sentiment: “I do not want to live in a world where everything I do and say is recorded. That is not something I am willing to support or live under."
Snowden soon left Hong Kong for Russia, where – after a 39-day stay in the transit zone of Moscow’s Sheremetyevo Airport – he was granted temporary asylum for one year. A statement attributed to Snowden by Wikileaks, which played an active role in assisting his flight from US law enforcement, read: "Over the past eight weeks we have seen the Obama administration show no respect for international or domestic law, but in the end the law is winning. I thank the Russian Federation for granting me asylum in accordance with its laws and international obligations."
When asked for The Guardian Q&A piece whether Snowden believed he had committed a crime, the refugee whistleblower answered: "We have seen enough criminality on the part of government. It is hypocritical to make this allegation against me. They have narrowed the public sphere of influence."
Apparently failing to see eye to eye on this sentiment, US prosecutors filed criminal charges against Snowden on June 14, including two charges brought under the US Espionage Act, according to a leaked copy of the complaint published a week later by The Washington Post. The charges include: Theft of Government Property, Unauthorized Communication of National Defense Information, and Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person.