Sen. Rand Paul files NSA lawsuit. Can he win?

Rand Paul is joining with the conservative group FreedomWorks to file a class action lawsuit claiming the NSA’s collection of metadata violates Fourth Amendment privacy rights.

Rand Paul is suing the National Security Agency over its phone metadata program. Specifically, he’s joining with the conservative group FreedomWorks to file a class action lawsuit against the Obama administration claiming the NSA’s collection of time, number, and other information about telephone calls violates Americans’ Fourth Amendment privacy rights.

“The Bill of Rights protects all citizens from general warrants. I expect this case to go all the way to the Supreme Court and I predict the American people will win,” the libertarian-leaning Senator Paul (R) of Kentucky said in a press release announcing the move.

The libertarian-leaning Sen. Paul (R) of Kentucky has been a tough critic of the NSA since leaker Edward Snowden began making the world aware of the scope of the agency’s actions. His 13-hour filibuster on the subject last March electrified privacy and civil liberties proponents on both sides of the political aisle.

The lawsuit may be an attempt to build on this reputation in advance of a possible 2016 presidential run. Paul also wants to win the case of course. Does it have a chance?

He and FreedomWorks are far from the first to sue the agency. The most successful legal challenge so far was filed by conservative activist and legal gadfly Larry Klayman. Mr. Klayman, founder of Judicial Watch, won a preliminary injunction against the NSA’s phone program in a federal district court. In his ruling, US District Court Judge Richard Leon called the NSA’s vacuum of phone metadata “almost Orwellian.”

Judge Leon stayed his ruling pending an appeal by the government.

It’s possible that Rand Paul’s lawsuit will now be heard in court alongside Klayman’s, according to US News & World Report’s Steven Nelson.

Klayman had earlier told US News that was a possibility if Paul sued, since the new lawsuit would likely be assigned to Judge Leon as well.

“If the lawsuit from Klayman isn’t accepted quickly by the Supreme Court, the in tandem scenario might mean joint hearings and court rulings alongside Paul’s team,” writes Mr. Nelson.

But the fate of another NSA lawsuit, this one filed by the American Civil Liberties Union, may point out the legal hurdles Paul will have to overcome to prevail. Federal Judge William Pauley in New York ruled that the ACLU had “no traction” in its argument that the NSA’s metadata program violated the Fourth Amendment.

The legal problem facing the ACLU and other NSA litigants may be establishing that particular people or organizations have been harmed, points out Adi Robertson on the tech site The Verge.

For members of class action suits “there’s no definitive way to tell whether the NSA actually collected metadata from them, and the claim is too hypothetical for many judges. If Paul wants to go forward with [his] suit, he’ll need to calculate and prove similar damages for every single member of his class,” Robertson writes.

Thus the Paul effort may be doomed, according to The Verge.

Meanwhile, Paul’s Political Action Committee is urging supporters of the lawsuit to sign a petition and stand with Rand. This effort will collect names and e-mail addresses of possible political supporters in advance of any presidential run.

Obviously the nature of this effort is worlds apart from NSA data collection. It is voluntary and limited, not to mention common among politicians and political organizations.

But the juxtaposition has caused some pundits to comment as to whether Paul has multiple goals with today’s NSA filing.

“A list of 10 million people with working e-mail addresses, a demonstrated commitment to an issue on which Paul is strong, and information about where exactly they live? That’s got a lot of value to Paul 2016, even if not to his legal team,” writes The Wire’s Philip Bump.