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Of Course the NSA Phone Program Is Likely Unconstitutional, but Now a Judge Thinks So Too

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Posted on Dec 16, 2013
Sparkles Tuey (CC BY-NC-ND 2.0)

If you listen carefully, you can probably hear a chorus of “Duhs” breaking out worldwide as the news spreads about a federal judge ruling Monday that the National Security Agency’s phone data collection program constitutes unreasonable search and seizure under the Fourth Amendment.

While other judges have cowered behind Smith v. Maryland, a 1979 Supreme Court ruling that states police do not require warrants to track numbers dialed on a phone line, U.S. District Court Judge Richard Leon has written, “I cannot possible navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

The amendment in question prohibits “unreasonable searches and seizures” but this isn’t the only reason Leon has decided to rule against the NSA. He also deems the proof the Justice Department proffered to justify the metadata collection in order to protect citizens against terrorist attacks inadequate.

While there are still three similar cases challenging the NSA’s paranoid mass tracking, thank the lucky stars at least one judge has had the foresight to see what’s right in front of us all: What the NSA is doing and has done is illegal, and at the very least immoral. Leon has agreed to hold off on enforcing his injunction against the NSA to give the Justice Department time to appeal his ruling.

—Posted by Natasha Hakimi


Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.”

Leon’s 68-page ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case.

The Justice Department persuaded those courts that the collection of information on the time and length of calls, as well as the numbers called, did not amount to a search under the Fourth Amendment because that information is routinely available to telephone companies for billing purposes and is shared with those firms voluntarily.

...The judge went on to conclude that the searches involved in the NSA metadata program were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism.

“I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

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