A three-judge panel of the U.S. Court of Appeals has unanimously lifted an injunction against the NSA's bulk data collection regime, overturning a lower court decision to grant the injunction, but not reaching the underlying issue whether the conduct is unconstitutional and handing the Obama Administration a victory.
The plaintiffs in the case had contended that the bulk collection of phone records constituted an illegal search under the Fourth Amendment. A district court issued the injunction back in November preventing the collection of the plaintiffs' call records, but stayed that decision pending appeal.
The U.S. Court of Appeals has reversed the injunction—the data collection can continue—and remanded the case back to the lower court for further proceedings. One of the three judges making that decision would have dismissed the suit entirely as moot and remanded it back for dismissal.
Key to the decision of all three judges was that the government had acknowledged only that it had collected bulk data from Verizon's business service, not the Verizon Wireless service of which the subs were plaintiffs.
"Thus, unlike some others who have brought legal challenges to the bulk collection program, plaintiffs lack direct evidence that records involving their calls have actually been collected," wrote Judge Janice Rogers Brown in explaining the decision to reverse the injunction.
One of the key factors in granting an injunction is the likelihood of the plaintiffs winning the appeal. The D.C. appeals court found the jurisdictional—whether there was an actual injury that gave the plaintiffs standing to sue—brought that likelihood into question. But remanding the case back to the lower court means it can determine whether to allow the plaintiffs to bolster their argument for standing.
The USA Patriot Act, which passed last June, will either limit or eliminate (depending on whom you ask) the sort of bulk collection at issue, but that does not go into effect until the end of November and, in the interim, the bulk collection regime remains.
The suit stemmed from phone record-collection revelations exposed by NSA leaker Edward Snowden. The Obama Administration has taken steps to end indiscriminate bulk collection, including through presidential orders, but has defended the underlying need for phone record collection to protect national security.
