Judge offers way to challenge NSA

Plaintiffs can amend case against telephone data collection program

WASHINGTON — A federal judge laid out a path Wednesday to revive a constitutional challenge to the National Security Agency's domestic call records program "almost Orwellian," said that plaintiffs could amend their case immediately to include customers of a Verizon unit known to have participated in the program, Verizon Business Network Services.

The U.S. Court of Appeals for the D.C. Circuit on Friday lifted Leon's December 2013

injunction blocking the program, ruling that plaintiffs in the case had not proved their records were collected because they are customers of a different Verizon subsidiary, Verizon Wireless.

"This court has ruled. This court believes that tens of millions of Americans' constitutional rights have been — and are being — violated," Leon told attorneys at a 45-minute status hearing. "If the court finds jurisdiction, I don't have to write another opinion on the merits. ... It is written."

The developments came as federal judges in Washington and New York City wrestled with the legality of and congressional changes to the NSA program, which gathered millions of Americans' phone records daily in an effort to detect terrorist plots.

The NSA program, secretly initiated in 2001 under executive power and approved by the surveillance court in 2006, has collected metadata from billions of phone calls from an unknown number of large phone companies. Such data includes the number, time and duration of calls, but not the content.

The program's existence was confirmed by the government in June 2013 after former NSA contractor Edward Snowden leaked a classified court order to Verizon Business Networks Services directing it to turn over "all call detail records" to the government.

That December, Leon became the first judge to find that the program is likely unconstitutional. Friday's reversal of Leon's injunction in Washington had no immediate effect because Leon had stayed it pending appeal.

However, Congress passed legislation in June ending the program and barring the government from collecting phone and other records in bulk. Nevertheless, the NSA can continue to do so until Nov. 29 as it transitions the collection effort to phone companies, to whom the government can direct queries with court approval.

Separately, the only appeals court to rule on the merits of the NSA program, the 2nd Circuit Court of Appeals in New York, held in May that the collection violated the Patriot Act and was "unprecedented and unwarranted."

The New York court heard arguments Wednesday afternoon on the American Civil Liberties Union's request that the agency be required to end the collection program immediately.