Judge: NSA phone program likely unconstitutional
By: Josh Gerstein
December 16, 2013 01:36 PM EST
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional.
U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.
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.
Government lawyers and the judges who found the NSA program legal pointed to a 1979 Supreme Court ruling, Smith v. Maryland, which found no search warrant was needed by police to install a “pen register” which recorded the numbers dialed on a particular phone line.
But Leon said the three-decade-old precedent was not applicable to a program like the NSA’s because of its sophistication and because telephone use has become far more intense in recent years.
“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” the judge wrote. “I cannot possible navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”
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.”
The judge ruled on a motion for preliminary injunction that does not require him to make a definitive ruling on the constitutional questions in the case, but on which side is more likely to prevail.
The judge’s ruling was issued just before White House press secretary Jay Carney took the podium for the daily press briefing. Carney said he was unaware of the decision and he referred inquiries to the Justice Department.
“We are reviewing the court’s decision,” DOJ spokesman Andrew Ames said.
Similar lawsuits challenging the program are pending in at least three other federal courts around the country.