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Will 2016 Spell the End of NSA Surveillance Lawsuits?

By Casey C. Sullivan, Esq. on January 04, 2016 | Last updated on March 21, 2019

It's been less than two years since Edward Snowden revealed the extent of warrantless government surveillance, hopped on a plane, and made his new home in freedom-loving Mother Russia. Since then, several lawsuits have attempted to halt the National Security Agency's bulk telephone metadata collection program. A few of them were even initially successful.

The new year could see those cases dismissed as moot, though government surveillance lingers on.

Everything's Turning Moot

For a brief period in 2015, it seemed like the court system might be able to halt or limit the NSA's surveillance. Around this time last year, the tech policy folks at Ars Technica were predicting that 2015 would see at least one NSA metadata collection challenge reach the Supreme Court. On January first, they looked back and said "whoopsie." None of the cases Ars had previewed made significant headway last year.

Things were promising at first, however. Conservative lawyer Larry Klayman met with initial success in the District Court for the District of Columbia. D.D.C. Judge Richard Leon ruled in favor of Klayman twice and was twice reversed by the D.C. Circuit, where the lawsuit is still creeping along.

A bit to the north, the Second Circuit invalidated the NSA's spying program as ultra vires, in excess of the authority granted by Patriot Act section 215.

But the significance of those cases remains questionable, as Congress allowed section 215 to expire last summer and now most of the litigation over the program is expected to be dismissed as moot.

As Judge Leon noted in the Klayman case:

With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry.

Section 215 Is Over, but Surveillance Lives On

The expiration of 215 doesn't mean the end of bulk metadata collection or government snooping, however. The USA Freedom Act, passed just after section 215's demise, modified the Patriot Act to end direct NSA metadata collection. But it hardly solved the problem. Instead of gathering metadata directly, that information is now stored with the telecom companies, but still accessible to the government with a simple court order.

Then there are the other, non-Patriot Act surveillance authorities. Executive Order 12333, for example, gives the federal government broad leeway to collect data on American citizens. The new Cybersecurity Information Sharing Act authorizes companies to share private consumer data with the government and shields them from liability. It's been criticized by privacy advocates as more a cybersurveillance measure than a cybersecurity one.

Of course, it's too soon to know just how CISA and other programs will play out. But with existing litigation nipped likely in the (mooted) bud, one thing is for sure: we'll still have to wait a bit to see how, or if, courts will weigh in on the privacy issues NSA spying has raised.

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