(Credit: Wikimedia Commons)
Larry Klayman, the attorney and activist challenging the U.S. government’s surveillance efforts in court, today told a judge he was eager to begin collecting information and evidence from national security agencies while part of his case is on appeal.
Klayman won a ruling in December from U.S. District Judge Richard Leon that the government’s collection and storage of Americans’ telephone data likely violated individual privacy rights under the Fourth Amendment. The U.S. Department of Justice is appealing Leon’s decision to the U.S. Court of Appeals for the D.C. Circuit.
Klayman today told Leon that he wanted to begin discovery as soon as possible on the pieces of his case not on appeal, including his challenge to the government’s alleged collection of Internet communications. “These matters need to move forward,” he said.
The Justice Department has asked Leon to dismiss the claims that are not on appeal. Marcia Berman, an attorney in the Federal Programs Branch of the U.S. Department of Justice Civil Division, said today in court that the government feared the disclosure of classified information once discovery begins.
Leon said his first step will be to consider whether he can hear the government’s motion to dismiss while the appeal on the constitutional issues is pending.
Klayman filed several lawsuits challenging government surveillance efforts following leaks earlier this year by ex-National Security Agency contractor Edward Snowden. Klayman and his co-plaintiffs sued as subscribers of telecommunications companies that were reportedly the subject of NSA intelligence-gathering efforts.
On Dec. 16, 2013, Leon concluded the NSA’s bulk collection of telephone records “almost certainly” violated the individual privacy rights of American citizens. He ordered an injunction halting the collection of records for Klayman and another plaintiff, but put that order on hold pending a likely appeal by the Justice Department.
The government appealed soon after. Klayman also filed an appeal. Leon found the court lacked jurisdiction to consider Klayman’s claim under the federal Administrative Procedure Act, which was separate from the constitutional claim.
Klayman’s case has grown narrower in the weeks since Leon’s ruling. On Jan. 10, the Justice Department asked Leon to dismiss aspects of Klayman’s lawsuit that didn’t involve constitutional issues, including claims under the Administrative Procedure Act and Stored Communications Act; claims for relief from programs that allegedly collect Internet metadata (the government said it discontinued the program in 2011) and target Internet communications; and common law tort claims.
Klayman replied on Jan. 30 that he was withdrawing his Administrative Procedure Act and Stored Communications Act claims and would file an administrative federal tort claims case. “However,” he wrote, “the constitutional claims will continue to be vigorously pursued.” He said he’d continue to pursue claims challenging the alleged collection of Internet-based data and content.
The number of defendants also shrank following the December ruling. On Jan. 31, Klayman agreed to dismiss his claims against Verizon Communications Inc. Verizon’s lawyers at Wilmer Cutler Pickering Hale and Dorr had argued that if the telecommunications company was obeying court orders to provide customer information—a claim the company didn’t acknowledge—it would be immune from liability for any alleged privacy violations.
Klayman filed a new class action on Jan. 23 challenging the government’s alleged collection of information on individual Americans’ telephone calls, Internet activity and other electronic communications. Berman today said the new case seemed to be “entire duplicative” of his other cases.
Leon was the first, but not the only, judge to weigh in on the surveillance program following the leaks by Snowden. On Dec. 28, U.S. District Judge William Pauley III of the federal court in New York found that the surveillance program did not violate privacy rights, siding with the government against claims similar to Klayman’s filed by the American Civil Liberties Union.
The ACLU is appealing Pauley’s ruling to the Second Circuit. The Second Circuit agreed to put the case on its expedited calendar and the Justice Department said in previous court papers that it expected the D.C. Circuit to do the same. Klayman has said he wants to skip the D.C. Circuit and petition the U.S. Supreme Court right away.
President Obama attempted to address concerns about the surveillance program in a series of reforms he announced on Jan. 17. The reforms included directing the Justice Department and National Security Agency to find a nongovernment source to store the telephone data collected.