- The Washington Times - Monday, November 9, 2015

A federal judge on Tuesday stood by his ruling that the National Security Agency must immediately stop snooping on a lawyer who challenged the spy agency’s phone data collection program — rejecting anemergency request made by government attorneys who said the decision would force them to shutter the whole program.

U.S. District Judge Richard J. Leon’s Monday ruling was seen as a major win for privacy advocates, who said despite its narrow reach it sent a severe message to the government about privacy rights.

The ruling bans the NSA from collecting phone call data on a lawyer and his business, though not the larger public, and comes less than three weeks ahead of the date the current NSA program is set to expire.

“It makes no difference that this violation now has a foreseeable end,” Judge Leon wrote in the 43-page opinion, adding that he wouldn’t allow the government to run out the clock or shroud itself in secrecy to try to justify an infringement of Americans’ Fourth Amendment rights. “This Court simply cannot, and will not, allow the Government to trump the Constitution merely because it suits the exigencies of the moment.”

Judge Leon ordered the agency not only to stop collecting records of lawyer Jeffrey James Little and his California law firm J.J. Little and Associates, but to segregate their existing records from the rest of the massive database the NSA has built up over the years of Americans’ phone call metadata.

Justice Department lawyers unsuccessfully requested the judge stay his opinion pending an appeal, arguing that it would be impossible to stop gathering data on the lone lawyer and his law firm.

“The only practicable way for the NSA to comply with the Court’s preliminary injunction is immediately to cease all collection and queries of telephony metadata under the Section 215 program — that is, to shut the program down,” Benjamin C. Mizer, principal deputy assistant attorney general, wrote in an emergency request. “That is so because the technical steps required in order to prevent the further collection of and to segregate the metadata associated with particular persons’ calls would take the NSA months to complete.”

The fierce fight comes even though the NSA program has only a few more weeks left anyway.

Congress earlier this year passed the USA Freedom Act, setting a Nov. 29 deadline for the government to end its bulk collection under the Patriot Act and the Foreign Intelligence Surveillance Act.

That makes the administration’s stance all the more striking: It is feverishly battling to keep afloat for just three weeks a program that President Obama himself has said is not necessary and that the NSA is already working to wind down.

The ruling was the latest twist in a case brought by Larry Klayman, a conservative lawyer who is trying to halt the phone-snooping program and seeking $20 million in damages from the government.

In reaction to Monday’s initial ruling, Mr. Klayman praised the judge for “protecting the American people from tyranny” and said the basis for the ruling would likely embolden others to challenge the program in both its current and future form.

Judge Leon first ruled in December 2013 that the NSA program was likely unconstitutional, but he stayed his own ruling to allow for the government to appeal.

The appeals court took 20 months to deliver a ruling, issuing one in August that concluded Mr. Klayman had been unable to prove his number was one of those collected by the NSA. Mr. Klayman used Verizon Wireless for his phone service, but the government had only publicly acknowledged scooping up the phone records of Verizon Business Network Services customers.

The case was sent back to Judge Leon for further proceedings. Mr. Klayman then quickly added Mr. Little and his law firm as plaintiffs because they both subscribed to Verizon Business Network Services, giving Judge Leon a clear case to reissue his ruling.

The Obama administration had argued in court that the snooping program is essential to national security, saying it can help stop terrorist attacks.

But Judge Leon brushed those claims aside, saying the government had not offered any cases where the phone program aided a time-sensitive investigation in heading off an imminent terrorist threat.

“Not exactly confidence inspiring!” he wrote.

Privacy advocates also cheered Monday’s ruling, with the Electronic Frontier Foundation saying Judge Leon’s opinion “should be broadly influential in ongoing and future challenges to the NSA’s suspicionless spying.”

Under the original NSA program, the government obtained orders from the secret Foreign Intelligence Surveillance Court that directed phone companies to turn over telephone “metadata” — the incoming and outgoing phone numbers dialed and the times and duration of calls. The data did not include the content of messages or the conversations themselves.

The program was launched after the Sept. 11, 2001, terrorist attacks, and was first detailed publicly in leaks by former government contractor Edward Snowden in 2013.

Under the new program, approved by Congress and set to take effect Nov. 29, private phone companies will retain the data and allow the NSA to obtain information in only specific cases involving targeted individuals and with permission from a federal court.

Mr. Mizer, in the government’s request for an emergency stay Monday, said they need until the end of the month to complete the transition to that new arrangement.

The next fight, meanwhile, will be over what happens to the information gleaned from the program, which has been operating for years.

“The government should now commit to destroying the call records that it collected illegally — not just its database of ‘raw’ data but any subsidiary databases that include query results,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union. “It should also reconsider the lawfulness of other bulk surveillance programs that have not been officially acknowledged.”

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