A federal appeals court in Washington, DC, on Friday tossed out an injunction over the National Security Agency’s bulk collection of millions of American’s phone records, but left open the question of whether the program itself is legal.
The three appeals court judges assigned to the case splintered, with each writing a separate opinion. But they overturned a key ruling from December 2013 that critics of the NSA program had used to advance their claims that the collection of information on billions of calls made and received by Americans was illegal.
That ruling, issued by Judge Richard Leon in Washington, sent shockwaves across the legal landscape because it was the first in which a federal court judge sided with critics who questioned the legality of sweeping up data on vast numbers of phone calls–nearly all of them completely unrelated to terrorism.
The new decision Friday from the U.S. Court of Appeals for the D.C. Circuit did not kill the lawsuit brought by conservative gadfly Larry Klayman. The appeals court voted, 2-1, to allow the lawsuit to proceed in the district court, but the judges left doubts about whether the case will ever succeed.
In June, Congress phased out the NSA’s controversial program with the passing of the USA Freedom Act. The new law forced the NSA to obtain private phone records for counterterrorism investigations on a case-by-case basis through a court order. After the law mandated a six-month transition program for the new program, the Foreign Intelligence Surveillance Court ruled that the NSA could continue its existing bulk collection program through November.
The American Civil Liberties Union has also filed an injunction to block the program, arguing that the surveillance court should not have reinstated the program after a federal appeals court in New York found it to be illegal.