Surveillance

Plaintiffs file response in Klayman v. Obama

By Jane Chong
Thursday, August 14, 2014, 9:54 AM

Yesterday plaintiffs-appellees filed their response in Klayman v. Obama, the Section 215 metadata collection case up on appeal in the D.C. Circuit. As expected, most of the brief is dedicated to arguing that (1) Judge Richard Leon was correct in barring the government from collecting any Section 215 metadata associated with the personal Verizon accounts of plaintiffs Larry Klayman and Charles Strange, and requiring the government to destroy any such metadata already in its possession. The plaintiffs also contend that (2) the court erred in denying plaintiffs' motion for a preliminary injunction with respect to the government's allegedly discontinued internet data surveillance, and in denying plaintiffs' motion with respect to plaintiff Mary Ann Strange, and (3) the district court should have reached a decision on plaintiffs' First and Fifth Amendment claims.

Key to Judge Leon's December 16, 2013 ruling in favor of the plaintiffs was his conclusion that the Supreme Court's decision to uphold the installation and use of a pen register in Smith v. Maryland was not controlling for purposes of determining the constitutionality of modern bulk telephony metadata collection. In their new filing, plaintiffs argue that the Supreme Court recently vindicated Judge Leon's reasoning with its June decision in Riley v. California, 134 S.Ct. 2473 (2014), in which it held that police officers must generally obtain a warrant before searching a cell phone seized incident to arrest.

It should be noted that the Riley decision mentions Smith only once---specifically, the Court rejects the government's reliance on Smith to support the argument that officers should always be able to search a phone's call log, since there was no dispute in Riley that the policer officers had engaged in a search (in contrast with the pen register use deemed a non-search in Smith), and because call logs typically contain more than simply phone numbers. But Klayman and crew seek to extend the Court's general reasoning in Riley to the extent that its ruling in that case "clearly lays the foundation for what is to come in the present case—that is, that past Supreme Court rulings, around the time of Smith, analyzing unlawful police and government searches, do not apply to the unconceivable circumstances of today."

For background, see our summary of the government's opening brief here.