Ongoing news reports in the international media have revealed operational details about the United States' National Security Agency (NSA) and its international partners' global surveillance^[1] of foreign nationals and American citizens. The reports emanate from a cache of top secret documents leaked by the former NSA contractor Edward Snowden. On June 6, 2013, the first of Snowden's documents were published simultaneously by The Washington Post and The Guardian, attracting considerable public attention.^[2] Shortly after the disclosure, plaintiffs Larry Klayman, founder of Freedom Watch, Charles Strange and Mary Strange, parents of Michael Strange, a cryptologist technician for the NSA and support personnel for Navy Seal Team VI who was killed in Afghanistan, filed lawsuit challenging the constitutionality of the bulk metadata collection of phone records (Klayman I).

In Klayman I, subscribers of Verizon Wireless brought suit against the NSA, the Department of Justice, Verizon Communications, President Barack Obama, Eric Holder, the United States Attorney General, and General Keith B. Alexander, the Director of the National Security Agency.^[3] The plaintiffs alleged that the government was conducting a "secret and illegal government scheme to intercept vast quantities of domestic telephonic communications", which violated the First, Fourth and Fifth Amendment and also exceeded statutory authority granted by Section 215.^[3] They also alleged that the collected metadata contained highly personal and sensitive data.^[4]

In Klayman II, the plaintiffs sued the same government defendants as well as Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, Apple, and again alleged the bulk metadata collection violated the First, Fourth and Fifth Amendments, as well as well as Section 2702 of Stored Communications Act.^[5]

On December 16, 2013, U.S. Federal Judge Richard J. Leon ruled that bulk collection of American telephone metadata likely violates the Fourth Amendment. The judge wrote,

I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval ... Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment.^[6]

Leon, the first judge to examine an NSA program outside of the secret FISA court on behalf of a non-criminal defendant, described the technology used as "almost Orwellian", referring to the George Orwell novel Nineteen Eighty-Four, in which the world has come under omnipresent government surveillance. In the 68-page ruling, Leon said that he had "serious doubts about the efficacy" of the program.^[7] The U.S. government was unable to cite "a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive."

The judge ruled that a 1979 case, Smith v. Maryland, which established that phone metadata is not subject to the Fourth Amendment, did not apply to the NSA program as the U.S. Justice Department had argued. He termed the use of telephony metadata in Smith v. Maryland as short-term forward looking capture and that of NSA as long-term historical retrospective analysis. Citing the NSA's vast scope and "the evolving role of phones and technology', Judge Leon's opinion pointed out that the Fourth Amendment needs to adapt to the digital age.^[8] Judge Leon stayed the ruling, giving the U.S. government six months to appeal.^[9]

In its analysis, the court found that the plaintiffs did have standing to challenge the bulk telephony metadata program since their fear of being surveilled was not merely speculative. The elements the court's considered when ruling for the preliminary injunction were,

"whether (1) the plaintiff has a substantial likelihood of success on the merits; (2) the plaintiff would suffer irreparable injury were an injunction not granted; (3) an injunction would substantially injure other interested parties; and (4) the grant of an injunction would further the public interest."^[10]

With consideration of those elements, the court ruled that the plaintiffs do have a substantial likelihood of success on their Fourth Amendment arguments.^[10] Being customers of Verizon^[11][12] their data was being collected by NSA as evidenced by the leaked FISC order that orders Verizon to provide on an ongoing daily basis, its business records to NSA.^[13] Although the court did not find any evidence that plaintiff's data was being analyzed or any evidence of their allegation that government is behind the inexplicable phone calls and text messages sent to and received from their phone numbers,^[11][12] Judge Leon declared that he had reason to believe that everyone's metadata is being analyzed, because of the way the querying process works. He argued that for a foreign phone number for which NSA possibly hasn't collected any metadata, there is no way to query what numbers it has contacted other than to match it against every phone number in the database.^[7] He wrote,

Because the Government can use daily metadata collection to engage in repetitive, surreptitious surveillance of a citizen's private goings on, the NSA database implicates the Fourth Amendment each time a government official monitors it.^[7]

Plaintiffs did not establish standing to challenge the PRISM program which primarily targets Internet communications of non-US citizens believed to be located outside of US. The plaintiffs did not provide any evidence that as US citizens their Internet communications were being surveilled, nor did they allege that they communicate with anyone outside of US.^[7][14] Moreover, the government had discontinued the Internet metadata collection since 2011, so the court didn't consider the legality of the program further.^[7]

On the ruling, The Washington Post printed: "NSA officials ... now stand accused of presiding over a program whose capabilities were deemed by the judge to be 'Orwellian' and likely illegal."^[15][16]

Edward Snowden issued a statement in response to the ruling, saying in part:

I acted on my belief that the NSA's mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many.^[17]

In 2015, the D.C. Circuit Court of Appeals vacated the injunction and held that the plaintiffs failed to meet the heightened burden of proof regarding standing required for preliminary injunctions.^[18] The Court of Appeals disagreed with the lower court's interpretation of "search" within the context of the Fourth Amendment. The courts further stated that the plaintiffs failed to prove that there was "no reasonable articulable suspicion" in the NSA's justification.^[19] The case was remanded back to the district court. In 2015, the district court issued an injunction against the NSA from collecting data about Klayman's client, a California lawyer who had recently been added to the lawsuit. This was decision was later stayed by the D.C. Circuit court on appeal.^[20]

In 2017, Judge Richard Leon dismissed the suit against the government because Klayman and his client failed to establish that they had standing.^[21] In 2019, the D.C. Circuit affirmed the dismissal.

• Litigation over global surveillance
• ACLU v. Clapper

• Pro Publica's NSA Lawsuit Tracker"
• Justia Dockets and Filings: Klayman v. Obama et al