On Monday, January 4, 2016, the U.S. government filed a motion in Klayman v. Obama to vacate the preliminary injunction granted by the U.S. District Court for the District of Columbia that limited the National Security Agency’s (“NSA”) bulk domestic phone record surveillance program (“Program”).  The Government further moved to have its appeal dismissed as moot in light of Congress’s revisions to the Program.  King & Spalding reported on the preliminary injunction in November. 

As reported in November, Klayman v. Obama dates back to 2013 when, after the leaks of Edward Snowden, a group of plaintiffs sought to enjoin the federal government from collecting their telephony metadata under the bulk phone record collection and evaluation aspects of the NSA Program.  After the U.S. Court of Appeals for the District of Columbia Circuit denied the plaintiffs’ motion for a preliminary injunction due to lack of standing, the plaintiffs amended their complaint to add two parties as plaintiffs and filed a renewed motion for a preliminary injunction.  Judge Leon granted the renewed motion for a preliminary injunction on November 9, 2015, finding that the added plaintiffs have standing.  The injunction prohibits the government’s future collection and querying of two named plaintiffs’ telephone record data. 

Immediately following Judge Leon’s ruling, the D.C. Circuit panel granted the government’s request to stay the ruling, giving the government another chance to appeal. 

Pertinent to the case are changes to the surveillance program by Congress.  In June 2015, Congress passed the USA FREEDOM Act.  The Act authorized the Program―which had operated pursuant to Section 215 of the USA Patriot Act (“Section 215”) and orders by the Foreign Intelligence Surveillance Court (“FSIC”)―to continue during a 180-day transition period to a new, targeted collection program.  The transition period ended November 28, 2015, and bulk collection of telephony metadata under Section 215 has ceased. 

The FSIC, however, has authorized the government to preserve previously collected bulk telephony metadata for two purposes:  (1) for evidence in current civil litigation in the U.S. District Court for the Northern District of California until the government’s litigation preservation requirements are lifted, and (2) for technical (as opposed to analytic) access until February 29, 2016, solely for the purpose of verifying the accuracy of call detail records produced under targeted (i.e., non-bulk) production orders issued by the FISC after November 28, 2015.

In its January 4 motion to vacate and dismiss, the government argues that the preliminary injunction no longer serves a valid purpose since the Program has ended and because plaintiffs did not seek injunctive relief regarding the new, targeted collection program.  The government further notes that the injunction concerns only the bulk collection and analytic access to the telephony metadata under Section 215 during the 180-day transition period.  Therefore, according to the government, the preliminary injunction should be vacated, and the government’s appeal should be dismissed as moot.

Reporter, Jennifer Raghavan, San Francisco, +1 415 318 1234, jraghavan@kslaw.com.