On Friday, the U.S. Court of Appeals for the District of Columbia
overturned the decision of a lower court that ruled the mass collection of telephone metadata was unconstitutional. The reversal not only represents a setback to advocates seeking stronger privacy protections, but also the difficulty in proving their case.
In 2013, Judge Richard Leon of the U.S. District Court ruled the metadata collection of phone records unconstitutional. Under the program, the National Security Agency (NSA) could collect data on numbers dialed and the duration of those calls, but not the content. The ruling was instrumental in the passage of the USA Freedom Act, allowing telecommunication companies to retain the metadata, which the NSA can access.
According to one of the justices, Janice Rogers Brown, the plaintiff in 2013, Larry Klayman, did not have the standing to bring the case: "In order to establish his standing to sue, a plaintiff must show he has suffered 'concrete and particularized' injury." Since Klayman could not prove his personal records were surveilled, he should not have been granted the injunction.
Klayman's case can still proceed, but Judge Leon will have to point to a plaintiff who can prove his or her records were targeted by the bulk metadata collection. However, it may be difficult to meet that threshold. As Alan Butler, an attorney for the Electronic Privacy Information Center said at Wired.com, it is a Catch-22 situation:
"The problem of blanket government secrecy is that you can't get a court to answer the question of whether a government's activities are illegal until you prove something that the government won't allow you to prove."
So, there is still hope the constitutionality of metadata collection can be debated and heard. A plaintiff can still claim a breach of privacy has occurred. However, without solid proof the government surveilled that individual -- proof likely only the government can provide -- the case cannot proceed.
Looking at the 2016 election, Klayman, who initially brought the suit against the NSA, believes that the higher court's decision adequately reflects why candidates like Donald Trump have endured and grown in popularity -- even though Trump has come out in support of data collection:
"The country is in a revolutionary mode and Trump for them may represent the last hope of working inside our system of government to stem the growing tyranny, be it with illegal immigration, or unconstitutional government surveillance, designed to keep We the People enslaved to the establishment of both political parties."
Photo Source: Reuters