This is hardly a surprise, but the DC Appeals Court has issued a stay on Judge Richard Leon’s ruling from earlier this week that the NSA’s bulk phone record collection program was unconstitutional. This is the same appeals court that overturned Leon’s earlier ruling finding the program unconstitutional. This time, as we noted, Judge Leon refused to grant the government a stay, noting that the DC Circuit had taken its sweet time in actually issuing a ruling on the appeal — and the program is set to end in a couple weeks anyway. Also, Leon didn’t order the entire program shut down, but just that the NSA stop keeping the records of the plaintiffs who were customers of Verizon Business Network Services (J.J. Little and J.J. Little & Associates).

Of course, the DOJ ran to the appeals court, claiming (among other things) that their system couldn’t stop collecting the metadata of those individual entities without shutting down the whole program and putting us all at risk of TEH TERRRORISTS!!!!!. Of course, in the alternative, it argued that J.J. Little still shouldn’t have standing because there’s no proof that Verizon Business Network Services (VBNS) is still a part of the bulk collection program. As Marcy Wheeler pointed out, these arguments are nonsensical. First, the system clearly has the capability to remove certain indicators, as the government has previously admitted it had to leave out things like pizza parlors that mucked up the connection data. Second, it’s bizarre to argue that taking this one number out would let the terrorists win… while at the same time arguing that maybe the entire VBNS no longer participates in the program.

Either way, the appeals court wasted no time issuing a stay with basically no explanation other than “to give the court sufficient opportunity to consider the merits of the motion for a stay.” Of course it says it’s not a motion on the merits — and it’s not — but given that the program is dead in a couple weeks anyway, it doesn’t much matter one way or the other. Still, both sides have been asked to file additional arguments over the next few days.


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