Obama NSA Reform May Reduce Privacy, Kill Constitutional Challenges

The death of the NSA's bulk phone metadata program wouldn't necessarily be a win for privacy advocates.

President Barack Obama speaks in the East Room of the White House on Jan. 9, 2014, in Washington, D.C.
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U.S. District Court Judge William Pauley on Dec. 27 dismissed a similar case brought by the ACLU after determining the program a legal anti-terrorism tool. The ACLU is appealing the decision. A lawsuit filed by the Electronic Frontier Foundation on behalf of a broad range of advocacy groups hasn't yet arrived in a courtroom.

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Laycock believes courts probably would need more significant assurances than a presidential statement that the program is dead before dismissing the lawsuits.

"It has to be especially clear that [the] defendant will not resume the challenged practice, as where he has disabled himself from doing it again, or where he no longer has any reason or incentive to do it again," he says. "Voluntary cessation of an allegedly illegal practice does not prevent the court from adjudicating the practice's legality and enjoining its resumption."

The ACLU and EFF lawsuits seek declarations that the phone program is unconstitutional and permanent injunctions ending it. Klayman's suit seeks those actions as well as $3 billion in damages.

"Klayman is not likely to keep the suit alive by seeking damages, because of various immunity rules that protect the government and its officials from liability, especially for acts done before the law was clearly settled," Laycock says. Phone companies complying with government surveillance were granted immunity by Congress in 2007, but the government may be on the hook for damages if it's found to have violated Section 2712 of the Stored Communications Act.

[READ: Paul's Lawsuit May Be Heard 'In Tandem' With Case That Won Injunction]

Harvard Law School professor Richard Fallon says damages sought by plaintiffs actually may be what keeps cases against the program going.

The cases would "probably [be] moot" if the program ends, he says, "unless the plaintiffs seek damages for past harms."

Martin Redish, a law professor at Northwestern University, sees two possible outcomes if Obama terminates the NSA's in-house retention of phone records.

Courts either would decide the cases are moot because the government shows the collection is permanently over – possibly in conjunction with judges wanting to avoid the contentious issue – or the challenges would proceed based on the potential of similar conduct in the future, he says.

"Mootness is largely a discretionary doctrine and, some respected scholars believe, the court often invokes it to avoid politically delicate or difficult issues," Redish says.

"This strategic practice has sometimes been referred to as invocation of the 'passive virtues,'" he explains, meaning "use of the justiciability doctrines by the Supreme Court strategically to avoid difficult questions which the court does not wish to decide at this time."

Before denouncing the NSA program as "almost Orwellian" and issuing a preliminary injunction, Leon expressed hesitance about overruling 15 Foreign Intelligence Surveillance Court judges – each of whom were appointed by the Supreme Court's chief justice to seven-year terms and secretly authorized the data collection using a liberal interpretation of Section 215 of the Patriot Act. Pauley dismissed the ACLU's lawsuit after determining the program "lawful," citing in part the FISC court decisions.

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Although it's possible courts will slip out of the debate, Redish notes judges also may decide to keep the challenges alive if the program ends.

"One of the classic exceptions to the mootness doctrine occurs when it arises because of the defendant's voluntary cessation of the challenged activity," he says, and the cases against the NSA phone program would seem "to fit squarely within the 'voluntary cessation' exception."

Redish cites the 1953 Supreme Court ruling in U.S. v. W.T Grant Co., in which the court said a finding of mootness would mean "[t]he defendant is free to return to his old ways" and that "[t]his, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion."