A challenge to the National Security Agency’s bulk collection of telephone-call data was dealt a setback when a U.S. appeals court ruled a judge who called the initiative “almost Orwellian” was wrong to block the program.

U.S. District Judge Richard Leon in 2013 granted legal activist Larry Klayman’s request that he halt the NSA’s collection of his data. Leon then put that ruling on hold pending a government appeal.

A divided three-judge panel Friday overturned Leon’s order, while saying Klayman’s case may still proceed. The judges all agreed Klayman hadn’t shown he is likely to succeed in his lawsuit, but two of them said he should have the opportunity.

One of those two, U.S. Circuit Judge Janice Rogers Brown, said it was entirely possible the Obama administration may rightfully refuse to turn over the information Klayman requests.

“Such is the nature of the government’s privileged control over certain classes of information,” she wrote. “Regulations of this sort may frustrate the inquisitive citizen, but that does not make them illegal or illegitimate.”

U.S. Circuit Judge Stephen Williams agreed the case should move forward. U.S. Circuit Judge David B. Sentelle said Klayman, who heads an organization calledFreedom Watch, hadn’t met a threshold requirement of showing his data were being collected, giving him standing to sue.

Patriot Act

The NSA program was born in the aftermath of the terrorist attacks of Sept. 11, 2001, as part of the USA Patriot Act. The collection of bulk telephone data — numbers dialed, call duration, and other information — began in 2006.

Under the law, the intelligence agency can access the data only after convincing a Foreign Intelligence Surveillance Court that it has a reasonable suspicion a particular phone number is associated with a foreign terrorist group.

Klayman, in 2013 filings, argued collection of the information alone amounts to an unlawful search that violates the U.S. Constitution.

The law authorizing the program has since been superseded by new provisions that have not yet taken effect, the court said.

The appeals court case is Obama v. Klayman, 14-5004, U.S. Court of Appeals, District of Columbia Circuit (Washington). The lower-court cases are Klayman v. Obama, 13-cv-0881 and 13-cv-0851, U.S. District Court, District of Columbia (Washington).