Shortly after a federal judge in Washington ruled that a National Security Agency phone surveillance program is "almost certainly" unconstitutional, Verizon Communications Inc. moved to dismiss claims against the company in the case.
The challengers sued to hold Verizon liable for allegedly complying with government requests for American citizens' phone records. Verizon said that if it was obeying court orders to provide that information-a claim the company didn't admit-that would make the telecommunications company immune from liability for any alleged privacy violations.
"Companies are required to comply with court orders and cannot be sued for allegedly doing so," Verizon's attorney, Randolph Moss of Wilmer Cutler Pickering Hale and Dorr, argued in the brief.
U.S. District Judge Richard Leon yesterday found the phone record surveillance program likely violated the Fourth Amendment. He granted an injunction to two of the plaintiffs—including Larry Klayman—but put it on hold pending a government appeal.
The U.S. Department of Justice is supporting Verizon, filing documents under seal yesterday explaining why the company should be dismissed from the case. Deputy Attorney General James Cole said in a public filing that Verizon should be immune, but that the explanation was confidential due to national security concerns.
In another public court document filed yesterday, the government said parties couldn't be held liable if the attorney general certified certain circumstances surrounding the data collection at issue, such as that the party being sued—in this case, Verizon—didn't provide the alleged assistance or was following an order from the Foreign Intelligence Surveillance Court.
Verizon, in its court papers, didn't confirm whether it did provide the assistance the challengers sued over. However, the company's lawyers argued the plaintiffs were barred from suing Verizon over any alleged assistance the company provided to the government by order of a court.
The company said the plaintiffs' state law claims should fail because the case exclusively involved federal national security operations. Verizon’s lawyers argued the challengers failed to provide facts supporting their claims for emotional distress and "intrusion upon seclusion."
Klayman, an attorney and activist, sued the government and Verizon in June following leaks by ex-NSA contractor Edward Snowden that revealed a variety of government surveillance programs.
Leon ruled yesterday the collection, storage and analysis of phone record metadata "almost certainly" violated constitutionally protected privacy rights.
Following the release of Leon's opinion, the Justice Department asked the court for more time to file a response to Klayman's lawsuit. Lawyers for the government said they originally planned to ask the court to dismiss Klayman's Fourth Amendment claim, for instance, but Leon's ruling made it clear the plaintiffs were likely to win on that allegation.
An extension, the Justice Department said, would give the government "sufficient time to determine the impact of today’s Memorandum Opinion on the motion to dismiss that Government Defendants were prepared to file today, and more generally how the Government will seek to proceed in light of today’s ruling."
According to the government's filings, Klayman and his co-plaintiffs object to the government’s request for more time.