NSA wins battle over its phone records collection, as court lifts injunction, but fight isn't over

The appeals court reverses a strongly worded ruling against the NSA from a district judge

A U.S. appeals court has sided with the National Security Agency, striking down a lower court's injunction ordering the agency to stop collecting some domestic telephone records.

The U.S. Court of Appeals for the District of Columbia Circuit on Friday reversed a preliminary injunction against the NSA ordered by Judge Richard Leon of the U.S. District Court for the District of Columbia. Leon, in a strongly worded December 2013 decision, ruled that the NSA's bulk collection of domestic phone records likely violated the U.S. Constitution, but he delayed the injunction pending an appeal by the NSA and Department of Justice.

Plaintiffs in the lawsuit, including conservative lawyer Larry Klayman, haven't proved that the NSA, in its secretive surveillance program, collected their telephone records, members of the appeals court's three-judge panel wrote. The burden of proof for a preliminary injunction is high, Judge Janice Rogers Brown wrote for the majority.

Klayman pointed to a published court order establishing a bulk telephone records program for Verizon Business Network Services customers, but the plaintiffs are Verizon Wireless customers, she wrote. While the plaintiffs have shown "specific evidence showing the government operates a bulk-telephony metadata program," it's unclear if Verizon Wireless was included, she wrote.

"Although one could reasonably infer from the evidence presented the government collected plaintiffs' own metadata, one could also conclude the opposite," Brown added.

The appeals court decision denies the injunction, but kicks the lawsuit back to the district court for further proceedings. It's possible that the plaintiffs may never know if their telephone data was collected, Brown wrote.

"It is entirely possible that, even if the plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further the plaintiffs' case," she wrote. "But such is the nature of the government's privileged control over certain classes of information."

The appeals court ruling comes after the U.S. Congress voted this summer to rein in the bulk telephone records program. The NSA continues to collect U.S. telephone records in bulk as it winds down the program. Klayman wasn't immediately available for comment on the ruling.

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Grant Gross

IDG News Service
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