Cyber & Technology

Government Files Reply in Klayman v. Obama, ACLU Moves to Participate in Oral Argument

By Jane Chong
Tuesday, September 23, 2014, 9:20 AM
On Friday the government filed its response and reply brief in Klayman v. Obama, (1) arguing that the Judge Richard Leon erred in granting plaintiff-appellee-cross-appellants a preliminary injunction against Section 215 bulk telephony-metadata collection and (2) countering Klayman et al.'s cross-appeal for additional preliminary injunctive relief against government programs that involve "internet data surveillance activity."
Most of the government's 45-page brief is devoted to making out the usual argument for reversal of the preliminary injunction granted below, alleging that the plaintiffs lack standing and are unlikely to succeed on the merits, and that the district court abused its discretion in balancing the equities and assessing the public interest.
On the issue of standing, the government claims plaintiffs provide only "unsupported speculation" that telecommunications companies handed over the plaintiffs' telephony metadata to the government. On the likelihood of success of the merits, the government argues that the Section 215 program does not implicate constitutional privacy rights, and would be reasonable even if it did. As expected, the government focuses on the first issue---whether plaintiffs have a privacy interest in telephony metadata collected under the Section 215 program---contending that finding such requires disregarding Smith v. Maryland, 442 U.S. 735 (1979), whose precedential effect remains unaffected by the Supreme Court's decision in Riley v. California, 134 S. Ct. 2473 (2014). (Recall that plaintiff-appellees used the Court's reasoning in Riley to argue in their response brief that past Court rulings "around the time of Smith" on unlawful searches do not apply in the context of today's technologies.) The government also takes a few jabs at amicus curiae Electronic Frontier Foundation for "mak[ing] much" of cases like United States v. Jones, 132 S. Ct. 945 (2012), and United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. Jones, 132 S. Ct. at 945, both cases about long-term GPS monitoring that the government contends are narrow in their holdings and involved location data subject to far less restriction and judicial supervision than telephony metadata.
In a few short pages, the government rejects plaintiffs' claims that the Section 215 program violates their First Amendment rights, since any program-imposed burdens are incidental to the enforcement of laws of general applicability, and rejects the statutory arguments put forth by amicus curiae Center for National Security Studies, on the grounds that the plaintiffs have dropped their statutory claims. The government's brief ends by rejecting the plaintiffs' argument that the preliminary injunction granted by Judge Richard Leon should be broadened to enjoin surveillance involving the acquisition of content and Internet metadata under FISA Sections 702 and 402. The filing cites Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), for the proposition that plaintiffs can only speculate as to whether their communications have been targeted under Section 702 and have similarly provided no evidence that the government ever collected metadata about plaintiffs' internet communications.
Also on Friday, amici curiae ACLU filed a motion for leave to participate in oral argument, scheduled for November 4, 2014. Disputing ACLU's assertion that it has the most experience litigating the matter at hand, Klayman et al. contend that (1) the ACLU should not be granted any time that would cut into the time of plaintiff-appellees, and (2) that any time the organization is granted should come strictly after plaintiff-appellees have argued, and should be no more than five minutes.