Judge who once ruled against NSA metadata program tosses lawsuit

Lawyer who brought case the day after Snowden revelations vows to appeal.

“This Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs’ failure to demonstrate the necessary jurisdiction to proceed,” US District Judge Richard Leon wrote on November 21. “I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror.”

The original version of this case, known as Klayman v. Obama, was filed by well-known conservative activist attorney Larry Klayman on June 7, 2013—the day after the Snowden revelations became public. The complaint argued that the National Security Agency’s telephone metadata program (“Section 215”), which gathered records of all incoming and outgoing calls for years on end, was unconstitutional.

Eventually, Judge Leon ruled in favor of plaintiff and attorney Larry Klayman in December 2013, ordering that the NSA’s program be immediately halted.

However, the judge famously stayed his order pending an appeal to the District of Columbia Circuit Court of Appeals. The DC Circuit reversed his order in August 2015 and sent it back down to Judge Leon. The DC Circuit found (as has often been the case) that Klayman did not have standing as there was not enough evidence that his records had been collected.

Judge Leon next suggested that the case be amended to include a specific plaintiff that had been a customer of Verizon Business Services, not Verizon Wireless. That person, California lawyer J.J. Little, was soon found and added to the case. The judge then ruled on November 9, 2015 that the government be ordered to immediately stop collecting Little’s records.

The government again appealed the decision back to the District of Columbia Circuit Court of Appeals. Weeks later, though, the phone metadata program authorized under Section 215 of the USA Patriot Act ended on November 29, 2015. As such, the government said in December 2015 that it would formally appeal Judge Leon’s decision, largely on the basis that it’s now moot.

The DC Circuit ruled in favor of the government, sending the case back down to Judge Leon. Again, the government moved to have the case dismissed, which Judge Leon ultimately agreed with this month.

On Wednesday, Klayman, who did not immediately respond to Ars’ request for comment, told the Wall Street Journal that he would prepare for a third round of appeals.

“He took an exit stage left on this case, but we’re hopeful about the live case,” Klayman said. “I thank the judge for what he did in the past, but he made a mistake on this.”

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