LTO Quotes Me on the Recent Court Decision on NSA Spying

The Legal Tribune Online asked my opinion about the recent federal district court decision on NSA spying, Klayman v. Obama (pdf). The article's in German, so I'll give my two cents here briefly in English.

  1. This is just a decision on a motion for a preliminary injunction (einstweilige Verfügung). The plaintiff, half-bonkers American legal gadfly Larry Klayman, asked the court to stop the NSA spying on him while the underlying merits of the legal issues were resolved. To win this preliminary phase, he had only to show a 'likelihood' of success on the merits.
  2. The judge decided to 'stay' (delay) the injunction from taking effect until the government has had a chance to appeal. Thus the NSA can continue spying in the meantime.
  3. Even if Klayman wins his case, the end result would be only to force the NSA to stop spying on him (and one other plaintiff) — although, as a practical matter, the logic of the court's ruling would apply very broadly, since Klayman doesn't allege that he was targeted in any special way.
  4. The district court is the lowest in the food chain. The government will certainly appeal this ruling to the D.C. Circuit Court of Appeals, which is one of the more conservative in the nation.
  5. There is a 1979 Supreme Court decision, Smith v. Maryland, which holds that Americans don't have a legitimate interest in the privacy of the basic 'metadata' of their phone records (who called whom when). Granted, there are huge differences between Smith – which involved only one single pen-register-tap — and the current, omnivorous NSA spy program. However, a court could well conclude that Smith means the NSA program is constitutional, and if Smith needs to be updated or rejected, only the Supreme Court has the power to do that.
  6. As for any foreigners who may read this post, I regret to inform you that this decision applies only to Americans on American soil. Foreigners located abroad have almost no rights (pdf) under the U.S. constitution.

This is not to criticize the district court's decision — it's unusually well-written and convincing. Still, the best argument doesn't always win the day, not by a long shot. Therefore, I give the district court decision about a 40% chance of surviving on appeal. I hope I'm wrong…

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