Tags: NSA/Surveillance | Larry Klayman | NSA | spying | program | appeals court

Appeals Court Skeptical of Klayman Challenge to NSA Spying Program

Appeals Court Skeptical of Klayman Challenge to NSA Spying Program
Larry Klayman, of the political advocacy group Freedom Watch. (Allison Shelley/Getty Images)

By    |   Tuesday, 04 November 2014 09:28 PM

In December, when he won a preliminary ruling court ruling against the National Security Agency's domestic telephone "data-mining" program, Larry Klayman was ecstatic. But on Tuesday, he was back in court — and this time, the court was much more dubious.

The former Justice Department prosecutor-turned-conservative activist has been fighting to prevent the NSA from obtaining "metadata" — information about numbers dialed, the time of day, and length of calls, but not the actual content of conversations — arguing the collection of such information without a warrant is unconstitutional.

At the time, Klayman praised U.S. District Court Judge Richard Leon, who issued the ruling against the NSA, as "courageous" and a "hero" for opposing the program, exposed by Edward Snowden last year.

Klayman was in federal court Tuesday for another hearing on the issue, before the D.C. Circuit Court of Appeals. The appellate judges sounded decidedly skeptical of his premise that the metadata program violated the Fourth Amendment, the National Journal reported.

Judge Stephen Williams, for example, expressed the view that privacy violations were more likely to take place when intelligence officials analyze metadata. Williams said that was "two steps" removed from the collection stage, which Klayman was challenging.

Klayman responded that "just collecting the data is enough to implicate the Fourth Amendment." But Williams made clear that he remained skeptical of Klayman's contention that gathering massive amounts of unanalyzed data could violate an American's privacy.

Much of Tuesday's oral argument involved whether the NSA's surveillance was more intrusive than the government's use of "pen registers," 20th-century technology that enables law enforcement to obtain numbers culled from a wiretapped telephone line. In Smith vs. Maryland, a 1979 case, the Supreme Court ruled that pen registers did not require a warrant because the telephone company had already recorded those numbers.

Appeals Court judges Williams and David Sentelle both asked Klayman whether the controversial NSA program was substantively different from what had been at issue in the Smith case.

Klayman "struggled to answer this question, and instead fell back on sweeping statements warning of the grave dangers of unchecked government surveillance," according to the National Journal.

The D.C. court is one of three appellate courts deciding the constitutionality of the NSA program, leaving open the possibility that the Supreme Court may ultimately rule on the issue.

The judges also appeared dubious about a separate filing which contended that the government has misinterpreted Section 215 of the Patriot Act — legislation that intelligence officials have cited in defense of collecting bulk-communications data.

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In December, when he won a preliminary ruling court ruling against the National Security Agency's domestic telephone data-mining program, Larry Klayman was ecstatic. But on Tuesday, he was back in court — and this time, the court was much more dubious.
Larry Klayman, NSA, spying, program, appeals court
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2014-28-04
Tuesday, 04 November 2014 09:28 PM
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