Yesterday I looked at Plaintiffs’ statutory claims against the Government in Klayman, et al., v. Obama, et al., specifically, the Court’s finding that it lacked jurisdiction to decide those claims. Today, I am looking at the issue of standing in light of the opinion earlier this year Clapper v. Amnesty International. As a reminder, tomorrow I’m taking a look at the Court’s decision to grant Plaintiffs’ motion for preliminary injunction, in part, finding a likelihood of success on Plaintiffs’ Fourth Amendment claims.
Standing
In reviewing Plaintiffs’ Fourth Amendment claim to determine whether a preliminary injunction was appropriate, the Court looked to Plaintiffs’ standing to bring suit against the Government in light of the recent decision Clapper v. Amnesty International. In the earlier case, the United States Supreme Court found Plaintiffs failed to allege a “certainly impending injury” as their claims were based on a “highly speculative fear” that they would be targeted by surveillance activities. Distinguishing that case, the D.C. District Court found Plaintiffs did have standing here.
First, Clapper, the Court explained, could only speculate as to the injury suffered by Plaintiffs because the opinion was released prior to the news reports that revealed the existence and scope of the NSA’s surveillance program. Here, however, Plaintiffs were able to point to “strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.” The Court continued that, additionally, the Government has declassified a FISC opinion confirming that NSA collected telephony metadata from Verizon.
Although the Government argued that Plaintiffs lacked standing based on the possibility that Plaintiffs’ records were not collected, the Court seemed to think Defendants were arguing for it “both ways” as many of Defendants’ filings state that the Government “acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism” (original emphasis). The Court states that, if the Government truly created a “comprehensive” database, it must have collected metadata from Verizon, the largest wireless carrier in the United States.
[T]o find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function . . . defies common sense and does not exactly inspire confidence!
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