HERE’S A BIG problem with secret spying programs in the US: To dismantle them with a lawsuit, someone has to prove that their privacy rights were infringed. And that proof is almost always a secret.
That’s the Catch-22 that an appeals court served up Friday to plaintiffs who for the last two years have been attacking the NSA’s metadata collection program authorized under section 215 of the Patriot Act. The plaintiffs are led by constitutional lawyer and conservative activist Larry Klayman, who had sued the Obama administration for violating his fourth amendment privacy rights. In 2013, a lower court granted his a request for an injunction to stop the NSA’s spying on his data. But the Obama administration appealed that ruling, and an appellate court has now thrown out that injunction based on a familiar and vexing problem for those who sue the government’s secret spying apparatus: The plaintiffs couldn’t sufficiently prove that the NSA secretly spied on them.
“In order to establish his standing to sue, a plaintiff must show he has suffered a ‘concrete and particularized’ injury,” wrote judge Janice Rogers Brown in her opinion. “In other words, plaintiffs here must show their own metadata was collected by the government…the facts marshaled by plaintiffs do not fully establish that their own metadata was ever collected.”