Privacy & Cybersecurity Law Blog

On December 16, 2013, the United States District Court for the District of Columbia granted a preliminary injunction barring the federal government from collecting and analyzing metadata related to two consumers’ mobile phone accounts. The court held that the two individual plaintiffs were entitled to a preliminary injunction because they had standing to challenge the government’s data collection practices and were substantially likely to succeed on the merits of their claim. The court has stayed issuance of the injunction pending appeal to the D.C. Circuit Court.

The court’s opinion states that the federal government, through the National Security Agency (“NSA”), issued a production letter to the plaintiffs’ wireless provider requesting that the provider disclose vast quantities of consumer phone records indiscriminately, regardless of any suspicion of wrongdoing. The consumer phone records obtained by the NSA contained metadata, such as the phone numbers of outgoing and incoming calls to an individual’s account. According to the decision, the NSA (1) has collected bulk telephony metadata from multiple telecommunications providers for more than seven years, (2) has combined the metadata from the various telecommunications providers into one database, and (3) conducts sophisticated computerized searches of the metadata. The combined database is enormous, and it is updated daily. The court indicated that, based on the government’s description of its collection and review procedures, he was convinced that “everyone’s metadata” is analyzed.

Among other allegations, the plaintiffs charged that the NSA’s data collection practices constitute unreasonable searches and seizures that violate the Fourth Amendment. The court held that plaintiffs had standing to challenge the NSA’s data collection because they could point to “strong evidence” that their telephony metadata was collected and will continue to be collected. In granting the preliminary injunction, the court found that the plaintiffs were substantially likely to succeed on the merits of their claim because it is “significantly likely” that a person’s reasonable expectation of privacy is violated when the “[g]overnment, without any basis whatsoever to suspect [him or her] of wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval.”