D.C. Circuit Overturns Order Calling|Mass NSA Surveillance ‘Orwellian’

     (CN) – The D.C. Circuit overturned an order blocking the National Security Agency’s mass collection of telephone metadata on Friday because spying challengers have not yet proven that the agency targets Verizon Wireless accounts.
     A top-secret order leaked by former NSA contractor Edward Snowden showed that the agency scoops data of Verizon Business Network Services subscribers, a three-judge panel noted.
     It has been nearly two years since U.S. District Judge Richard Leon slammed the agency’s technology as “almost-Orwellian,” in a ruling finding that conservative gadfly Larry Klayman would likely prove the practices that Snowden exposed were unconstitutional. That same month in New York, another federal judge called the surveillance a permissible and necessary tool for keeping tabs on suspected terrorists.
     As of Friday, both of those rulings have been overturned on appeal.
     The Second Circuit Court of Appeals found that the American Civil Liberties Union had shown that the government’s longtime legal justification for data collection – the Patriot Act – did not authorize the agency’s program. The Manhattan-based appellate court stopped short of ordering an injunction, instead giving Congress the opportunity to clarify the law through legislation.
     Its sister appellate court in Washington, however, found that Klayman and his colleagues had not yet demonstrated that they even have standing to sue.
     A three-member panel comprising Judges Janice Rogers Brown, Steven Williams and David Sentelle agreed that the NSA’s “collect-it-all” philosophy was not enough to prove that it was watching their separate Verizon service.
     Two of the judges – Brown and Williams – found that Klayman should have the opportunity to vault this hurdle by seeking jurisdictional discovery on remand.
     Brown noted in her separate opinion that the government may invoke the state secrets privilege to block the release of this information.
     Quoting late Sen. Daniel Patrick Moynihan’s famous formulation, Brown wrote that government secrecy does not regulate “what the citizen may do” but instead “what the citizen may know.”
     “Excessive secrecy limits needed criticism and debate,” Brown’s opinion states. “Effective secrecy ensures the perpetuation of our institutions.”
     In his concurring opinion, Williams noted that the ACLU established jurisdiction by showing they subscribed to Verizon Business.
     Sentelle issued a partial dissent arguing that Klayman should not be allowed to press the government about the NSA’s reach because he has nothing more than “conjecture” that the agency is collecting his data.
     “While this may be a better-than-usual conjecture, it is nonetheless no more than conjecture,” he wrote.
     Later on Friday afternoon, the Foreign Intelligence Surveillance Court declassified an order allowing the government to continue scooping up call records under the Patriot Act until a new data collection program supplants it on Nov. 29.
     The FISC’s order contradicts the Second Circuit order calling this justification illegal, setting the stage for an appellate battle that could decide whether the federal appeals court has jurisdiction over the secret spy court in Washington.
     Neither Klayman nor the Justice Department responded to a request for comment.

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