Court tosses order halting NSA’s data collection

WASHINGTON — A challenge to the National Security Agency’s bulk collection of telephone-call data was dealt a setback Friday when a U.S. appeals court said a trial judge shouldn’t have moved to block the program, which he called “almost Orwellian.”

U.S. District Judge Richard Leon in 2013 granted legal activist Larry Klayman’s request for an order to halt the NSA’s collection of his data. Leon, an appointee of President George W. Bush, then put his ruling on hold pending appeal.

A divided three-judge panel on Friday overturned the order while saying the case can still go forward. The judges all agreed Klayman hadn’t shown he is likely to succeed, but two said he should have the opportunity.

One of the two, U.S. Circuit Judge Janice Rogers Brown, another Bush appointee, said it was entirely possible that the government may rightfully refuse to turn over the information Klayman requests.

“Such is the nature of the government’s privileged control over certain classes of information,” she wrote. “Regulations of this sort may frustrate the inquisitive citizen, but that does not make them illegal or illegitimate.”

Circuit Judge Stephen Williams, a Ronald Reagan appointee, also said the case should move forward.

Circuit Judge David B. Sentelle, also a Reagan appointee, said Klayman, who heads an organization called Freedom Watch, hadn’t met a threshold requirement of showing his data were being collected, giving him standing to sue.

The NSA program was born in the aftermath of the terrorist attacks of Sept. 11, 2001, as part of the USAPATRIOT Act. The collection of bulk telephone data — numbers dialed, call duration, and other information — began in 2006.

Under the law, the intelligence agency can access the data only after convincing a Foreign Intelligence Surveillance Court that it has a reasonable suspicion a particular phone number is associated with a foreign terrorist group.

Klayman, in 2013 filings, argued collection of the information alone amounts to an unlawful search that violates the Constitution.

The law authorizing the program has since been superseded by new provisions that have not yet taken effect, the court said.

The district court case is Obama v. Klayman.