Attorney Larry Klayman, notable here for his legal attempts to prevent Barack Obama’s re-election, is also suing the President (and others) over what he feels is the unconstitutional invasion of his privacy by the National Security Agency’s program of massive collection of information about telephone calls and other electronic communications. A similarly directed lawsuit, ACLU v. Clapper, was filed last June and is currently awaiting an order on a motion to dismiss.
Klayman’s lawsuit is styled Klayman v. Obama which is where the “Obama” part of the article’s comes from. There are actually two Klayman lawsuits before Judge Richard Leon, one against Verizon and a list of federal defendants, and a second against those same defendants plus Facebook, Yahoo!, Google, Microsoft, YouTube, AOL, PalTalk, Skype, Sprint, AT&T, and Apple.
The ruling by Judge Richard Leon in the District of Columbia is rather narrow, granting an injunction against two defendants from collecting information about Klayman and one other plaintiff. Then the judge stayed his own order pending appeal.
Reading the memorandum order, I find it it notable that Judge Leon doesn’t seem to be agreeing with plaintiffs, but rather performing his own independent analysis of the government’s representations and the applicable law. One gets the impression that the injunction was granted not because of Klayman’s arguments but in spite of them. In the one rare instance where Judge Leon referenced Plaintiffs’ arguments, he said:
Likewise, I find that plaintiffs also have standing to challenge the NSA’s querying procedures, though not for the reasons they pressed at the preliminary injunction hearing.
As if to underscore this point, Judge Leon cites from the transcript:
… I specifically asked Mr. Klayman whether plaintiffs had any “basis to believe that the NSA has done any queries” involving their phone numbers. … Klayman responded: “I think they are messing with me” … then went on to explain that he and his clients had received inexplicable text messages and emails not to mention a disk containing a spyware program. … Unfortunately for plaintiffs, none of these unusual occurrences or instances of being “messed with” have anything to do with the question of whether the NSA has ever queried or analyzed their telephony metadata, so they do not confer standing on plaintiffs.
Judge Leon pointed out that the complaint fails to even allege that two of the plaintiffs are even Verizon customers, and so the injunction can’t include them. In language that reminds me of something a judge said to Orly Taitz, Judge Leon seems have to figure out figure what the plaintiff’s are asking for, saying:
In light of how plaintiffs have crafted their requested relief, the Court construes the motions as requesting a preliminary injunction.
I think that Judge Leon made a mistake in his argument on standing. His analysis is correct in saying that there is a high probability (almost a certainty) that Klayman’s records have been collected and stored–supporting the part of his order enjoining the government against collecting data, but he also argued that Klayman’s records are being regularly queried because every time a new phone number is searched, it must be compared to every record in the database to see if anyone called it. Databases are indexed and it would be extremely unlikely that any record not associated with the target phone number (or a number linked from it) would actually be queried. (As an analogy: one doesn’t have to read an entire book when searching for a topic that’s in the book’s index.) A reasonably-designed database would not require full-table scans to find records that are obvious identifiers such as a telephone number. That mistake removes the justification for the second part of the injunction, prohibiting the querying of Klayman’s records. I will throw in my opinion that a judge enters dangerous ground when he starts doing his own analysis on technical issues. When he judges the arguments from the parties, he can evaluate them, but when he makes his own analysis, he doesn’t have the benefit of experts from the two sides. If Klayman had raised the argument Judge Leon made, the government would have certainly explained why it was wrong, as I did. As it is, the government will no doubt raise the issue on appeal.
Klayman didn’t fare so well before Judge Leon in the earlier Farah v. Esquire Magazine defamation lawsuit, which was dismissed.