In a move which the ACLU called a “procedural decision,” the DC Court of Appeals has overturned a May ruling which found the NSA bulk surveillance of telephone metadata to be illegal, saying that the plaintiffs in the case could not individually prove that they were targeted.
The problem stems from the Justice Department refusing to admit to the extent of the NSA’s surveillance publicly, and consequently even though virtually everyone is “targeted” as a matter of course, no one can prove they were part of the set of “virtually everyone,” and consequently the government can argue they don’t have standing to contest surveillance against them.
So long as the Justice Department keeps the program largely secret, that means it’s virtually bullet-proof in court, according to former Justice Dept. lawyer Robert Cattanach, who said the government could just keep refusing to hand over “classified” data during the discovery period and consequently leave the court without anything but conjecture to rule on.
In early May, a Circuit Court of Appeals ruled that the “staggering” level of telephone surveillance was both illegal and clearly not what was intended by the Patriot Act, which was nominally the legal basis at the time. The court refused to issue an injunction halting the spying, however, on the grounds that the provision was about to expire anyhow.
Though in theory the NSA was forced to halt bulk surveillance on May 31, Congress restored their power almost immediately thereafter, and the program has been confirmed to have resumed. Today’s ruling, then, has no practical effect, since ruling the spying illegal didn’t stop it in the first place, and just marks the latest in a long line of courts trying to avoid ruling on the issue.