Dueling Appeals in NSA ‘Dragnet’

(CN) - Differing conclusions about the constitutionality of the government's domestic phone surveillance program have been put to two appellate panels for review.

U.S. District Judge Richard Leon said in his December ruling that he couldn't imagine a more "indiscriminate" and "arbitrary invasion" than the National Security Administration's collection.

Though the Washington judge ordered the NSA to stop its dragnet program and destroy any information it had collected, he stayed the ruling pending the appeal.

The DOJ filed that a two-page notice of that appeal Friday in the case Klayman v. Obama.

Another case involving the NSA phone surveillance was brought up for appeal Monday.

The American Civil Liberties Union is pursuing this case in the Southern District of New York.

U.S. District Judge William Pauley III dismissed that complaint on Dec. 27, however, after finding that the prevention of terrorist attacks justifies NSA surveillance.

The ACLU had argued that the program overreached the government's authority and was unconstitutional.

Neither the ACLU nor DOJ could comment by press time.

The plaintiffs in the Washington case are Larry Klayman, founder of the conservative Judicial Watch; Charles Strange, whose father was killed in Afghanistan in 2011; and two private investigators.

Named defendants alongside the federal government include Facebook, Yahoo, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T and Apple.

"Plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation," Leon wrote last month. "I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism."

The federal government has maintained that its collection of the phone data is supported by all three branches of the government and buoyed by the 35 orders issued by the 15 judges sitting on the once-secret Foreign Intelligence Surveillance Court (FISC).

The existence of the FISC and the government's spying program was revealed when former NSA contractor Edward Snowden leaked information to the media about it in June.

One of the decisions ordered Verizon to turn over to the NSA daily all call detail and metadata for calls between the U.S. and abroad.

The Foreign Intelligence Surveillance Act allowed for secret courts to authorize government requests for data that might help with counterterrorism activities. The Patriot Act passed by Congress after the Sept. 11, 2001 terrorist attacks broadened the government's ability to collect information about Americans' phone activity.

It was only after Snowden leaked the information that the federal government admitted to its data-collection practices.

In dismissing the ACLU's case over the surveillance, Judge Pauley credited an argument that it could have put investigators on the scent of Sept. 11 hijcker Khalid al-Mihdhar.

Undermining that argument, ProPublica reported in June that U.S. intelligence agencies knew al Mihdhar's identity "long before 9/11 and had the ability find him, but they failed to do so."

The U.S. Supreme Court has also been asked to reconsider yet another challenge to government surveillance.

In that case, the ACLU is joined as a plaintiff by Amnesty International.

A federal judge awarded the government summary judgment against their claims in 2009, however, after finding no evidence of actual government spying.In a Friday petition to the Supreme Court, the Center for Constitutional Rights argued that Snowden's leaks uprooted any speculation from the case

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