Earlier this month, a three-judge panel of the U.S. Court of Appeals for the Second Circuit heard oral argument on the application of the American Civil Liberties Union (ACLU) to entertain an appeal seeking to overturn last December’s Southern District of New York decision denying the ACLU injunctive and declaratory judgment relief it sought in ACLU v. Clapper.1 The lower federal court had ruled in favor of the statutory and constitutional permissibility of the National Security Agency (NSA) program authorizing the bulk collection of cellphone metadata,2 a program revealed to the public in June 2013 as a result of information Edward Snowden had turned over to the media.
Two unusual aspects of the recent oral argument demonstrate the significance of the subject matter of this litigation. First, the panel permitted the combined arguments of the ACLU and government attorneys to continue for close to two hours when normally such is limited only to a combined 20 to 30 minutes.3 Second, the argument was televised live on CSPAN in its entirety,4 an event which happens even less frequently.
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