Judges consider NSA’s data sweep

WASHINGTON – A trio of conservative appellate judges sounded skeptical Tuesday about a challenge to the National Security Agency’s massive collection of telephone data.

In a high-tech privacy case that might be bound for the Supreme Court, the appellate judges resisted arguments made by a self-styled public advocate and his civil libertarian allies. After 95 minutes of oral argument, the judges seemed unlikely to permit a trial judge’s initial injunction blocking the NSA’s collection of data on two challengers.

The argument before three Republican appointees on the U.S. Court of Appeals for the District of Columbia Circuit highlighted the serious questions posed by the NSA’s voracious appetite for data.

“I understand this is a brand-new world,” Judge Janice Rogers Brown said. “I understand the aggregation of information is unlike anything we’ve seen before.”

The telephone metadata at the heart of the case include the call length, phone numbers used to make or receive calls and when the calls took place. They don’t include the content of the calls. Intelligence analysts use metadata to discern connections between terrorist organizations and operatives.

Critics have estimated the government’s call-record database contains billions of records.

Attorney Larry Klayman, who has filed dozens of lawsuits against presidents going back to Bill Clinton, challenged the NSA program on behalf of himself and Charles Strange, whose son Michael died in Afghanistan while serving as a cryptologic technician with a Navy SEAL team.

The ACLU filed a separate challenge to the metadata program in another appellate circuit, where a decision still is pending. If the two appellate circuits reach different conclusions, the Supreme Court almost certainly will have to resolve the dispute.