District Court Grants Plaintiffs’ Motion for Preliminary Injunction Against NSA Surveillance Activities: Part II of III

Yesterday I looked at Plaintiffs’ statutory claims against the Government in Klayman, et al., v. Obama, et al., specifically, the Court’s finding that it lacked jurisdiction to decide those claims.  Today, I am looking at the issue of standing in light of the opinion earlier this year Clapper v. Amnesty International.  As a reminder, tomorrow I’m taking a look at the Court’s decision to grant Plaintiffs’ motion for preliminary injunction, in part, finding a likelihood of success on Plaintiffs’ Fourth Amendment claims.

Standing

In reviewing Plaintiffs’ Fourth Amendment claim to determine whether a preliminary injunction was appropriate, the Court looked to Plaintiffs’ standing to bring suit against the Government in light of the recent decision Clapper v. Amnesty International.  In the earlier case, the United States Supreme Court found Plaintiffs failed to allege a “certainly impending injury” as their claims were based on a “highly speculative fear” that they would be targeted by surveillance activities.  Distinguishing that case, the D.C. District Court found Plaintiffs did have standing here.

First, Clapper, the Court explained, could only speculate as to the injury suffered by Plaintiffs because the opinion was released prior to the news reports that revealed the existence and scope of the NSA’s surveillance program.  Here, however, Plaintiffs were able to point to “strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.”  The Court continued that, additionally, the Government has declassified a FISC opinion confirming that NSA collected telephony metadata from Verizon.

Although the Government argued that Plaintiffs lacked standing based on the possibility that Plaintiffs’ records were not collected, the Court seemed to think Defendants were arguing for it “both ways” as many of Defendants’ filings state that the Government “acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism” (original emphasis).  The Court states that, if the Government truly created a “comprehensive” database, it must have collected metadata from Verizon, the largest wireless carrier in the United States.

[T]o find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function . . . defies common sense and does not exactly inspire confidence!

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Authors

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Professor William Snyder

Professor William C. Snyderis a member of the faculty of the Institute for National Security and Counter-terrorism at Syracuse University after fifteen years with the United States Department of Justice.

Ryan D. White

Ryan D. WhiteRyan is currently a third year law student at Syracuse University College of Law, and is also pursuing a Master of Public Administration degree from Syracuse’s Maxwell School of Citizenship and Public Affairs. Ryan spent time with Homeland Security Investigations while pursuing his undergraduate degree at Wesleyan University, and spent his first summer of law school as clerk for the U.S. Attorney’s Office in the Western District of New York. He is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and participates in the Veteran’s Legal Clinic. Full biography

Shelby E. Mann

Ryan D. WhiteShelby is a second year law student at the Syracuse University College of Law. During her final year at the University of Missouri, she served as a full-time news producer for ABC 17 News. Shelby spent her first summer of law school at the Shelby County District Attorney General's Office in Memphis, Tenn., in the Public Corruption and Economic Crimes Unit. She is a member of Syracuse Law Review, the Journal on Terrorism and Security Analysis, and the senior editor for the Syrian Accountability Project. Full biography

Christopher w. FolkChristopher W. Folk

is a 2017 graduate of SU College of Law. A non-traditional student, Christopher returned to academia after spending nearly twenty years in the high tech industry. Christopher served in the Marine Corps, graduated from Cornell University with a B.S. In Applied Economics and Business Management, attended Northeastern University’s High-Tech MBA Program and received a M.S. In Computer Information Systems. Christopher previously worked in Software Engineering. Christopher is currently serving his second term as Town Justice for the Town of Waterloo. Christopher externed with a Cybersecurity firm in the Washington, D.C. area between his first and second year at SU College of Law. Full biography

Anna Maria Castillo

is 2016 graduate of Syracuse College of Law. She also holds a Master of Arts in International Relations from Syracuse University's Maxwell School of Citizenship and Public Affairs. She has interned at a London-based think-tank that specializes in transnational terrorism and global security and at the legal department of a defense contractor. She served as an executive editor in the Syracuse Law Review. Full biography

Jennifer A. CamilloJennifer A. Camillo

is a 2015 graduate of Syracuse College of Law and is a prosecutor. She has served as a law clerk in the United States Attorney’s Office for the Northern District of New York and the Cayuga County District Attorney’s Office and as an extern in the Oneida County District Attorney’s Office. She was a member of the Syracuse National Trial Team and was awarded the Tiffany Cup by the New York Bar Association for her trial advocacy achievements.

Tara J. PistoreseTara J. Pistorese

holds Juris Doctor and Masters of Public Administration degrees from Syracuse University's Maxwell School of Citizenship and Public Affairs and its College of Law. She wrote for this blog when a student. She is now a member of the U.S. Army Judge Advocate General's Corps.

Benjamin Zaiser

is both a scholar and a Federal Agent of the Federal Criminal Police Office of Germany. (Opinions expressed here are his own and not any part of official duty.) Full biography

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