Court Strikes Down NSA Phone Record Gathering

This blog has frequently lamented what in my view is the unconstitutional violations of American citizens' right to privacy and freedom from unlawful searches and seizures.  Now, a federal court has agreed that the National Security Agency's blanket gathering of phone call records and even the locations of cell phones as unconstitutional.  While the government may well appeal the ruling, round one has been won by the forces that favor freedom and limitations on the growing police state in America.  It bears repeating that but for the leaks by Edward Snowden, we may well have never known the extent of the NSA's illegal domestic spying The Washington Post has coverage.  Here are highlights:

A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

Judge Richard J. Leon of the District of Columbia ordered the government to stop collecting data on the personal calls of the two plaintiffs in the case and to destroy the records of their calling history. But the judge, appointed to the bench in 2002 by President George W. Bush, stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take at least six months. The case is the first in which a federal judge who is not on the Foreign Intelligence Surveillance Court, which authorized the once-secret program, has examined the bulk data collection on behalf of someone who is not a criminal defendant. 

“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 and analyzing it without prior judicial approval,” Judge Leon wrote in a 68-page ruling. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures.
 

In a statement from Moscow, where he has obtained temporary asylum, Mr. Snowden praised the ruling.  “I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Mr. Snowden said in his statement.

Judge Leon’s ruling is not a final judgment on the program, but rather a preliminary injunction to stop the collection of data about the plaintiffs while they pursued their case. He also wrote that he had “serious doubts about the efficacy” of the program, saying that the government had failed to cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.” 

Judge Leon also pointed to a landmark privacy case decided by the Supreme Court in 2012 that held it was unconstitutional for the police to use a G.P.S. tracking device to monitor a suspect’s public movements without a warrant. 

Although the court decided the case on narrow grounds, five of the nine justices separately called into question whether the 1979 precedent was still valid in an era of modern technology, which enables long-term, automated collection of information.