Editor’s note: After this article was drafted but just before press time, the U.S. District Court for the Southern District of New York, entertaining a motion for injunctive relief identical to the instant motion, held on behalf of the government in ACLU v. Clapper, 13 Civ. 3994 (WHP) (S.D.N.Y. Dec. 27, 2013). Next month’s column will discuss that opinion.

In Klayman v. Obama, Civ. No. 13-0851(RJL) (D.C. Dec. 16, 2013), the U.S. District Court for the District of Columbia enjoined the National Security Agency and FBI from receiving telephonic metadata in bulk from telephone carriers and Internet service providers under the provisions of the Foreign Intelligence Surveillance Act and Patriot Act, which allow the government to obtain such metadata as “business records” and “tangible things,” respectively, based upon a showing that there were “reasonable grounds” to believe that metadata sought would be “relevant to an authorized investigation … to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” In so doing, the court raised many interesting questions regarding what privacy is in the digital age, but simply ignored the fact, and the standing and merits issues that arose from this fact, that the metadata in question, although it may have pertained to the plaintiffs, resided with the carriers, and so the plaintiffs had no reasonable expectation of privacy in it.

Facts of the Case

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