M.C. Sungaila in Law360: DC Circ. Protects Secret Gov't Programs In NSA Ruling

08/31/2015

The D.C. Circuit's decision to lift a lower court's injunction against the National Security Agency's phone metadata collection will have limited practical impact on the program soon to be curtailed by Congress, but attorneys say the ruling established a precedent making it difficult for plaintiffs to challenge other secret government programs.

The circuit court sent back the challenge to the bulk surveillance program for further proceedings, ruling that plaintiffs Larry Klayman and Charles Strange just barely met the standing stage since they haven’t shown that their own metadata was ever collected. The opinions issued by the panel stopped short of weighing in on the merits of the NSA’s metadata collection, which at any event is scheduled to sunset by the end of the year under the USA Freedom Act passed in June.

However, the ruling may pose a source of frustration for plaintiffs who want to challenge other secret programs, given that the secrecy of those programs themselves makes it difficult to establish whose data was affected, said M.C. Sungaila, a partner at Haynes and Boone LLP. 

Excerpted from Law360. To read the full article, click here (subscription required).

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