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Federal judge finds NSA phone-surveillance program is likely to be unconstitutional

By Scott Kaufman
Monday, December 16, 2013 14:22 EDT
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A computer workstation bears the National Security Agency (NSA) logo inside the Threat Operations Center inside the Washington suburb of Fort Meade (AFP)
 
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U.S. District Court Judge Richard Leon — a George W. Bush appointee — ruled on Monday that the National Security Agency’s program that collects information about all phone calls in the United States likely violates the Fourth Amendment prohibition on unreasonable search and seizures.

The lawsuit was brought on behalf of conservative legal activists Larry Klayman and Charles Strange, and concerns a FISC order from April 25, 2013 in which the NSA demanded that Klayman and Strange’s carrier, Verizon, provide the NSA on “an ongoing daily basis…all call detail records or ‘telephony metadata’ created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.”

Judge Leon finds the case made by the government that Klayman and Strange have no grounds on which to bring this lawsuit to be absurd on its face. On the one hand, he writes, “[v]irtually all of the Government’s briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool for combating terrorism.” But on the other hand, “the Government asks me to find that the plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative purpose.”

“Candor of this type,” he continues, “defies common sense and does not exactly inspire confidence!”

“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,” he writes. “Surely, such a program infringes on ‘that degree of privacy’that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power, would be aghast.”

“I am not convinced at this point,” he continues, “in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations.”

Morever, he writes, “[g]iven the limited record before me at this point in the litigation — most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program … [t]hus, plaintiffs have a substantial likelihood of showing that their privacy interests outweighs the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.”

UPDATE: Edward Snowden gave the New York Times a statement about today’s 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,” Snowden said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

[Image via AFP]

Scott Kaufman
Scott Kaufman
Scott Eric Kaufman is the proprietor of the AV Club's Internet Film School and, in addition to Raw Story, also writes for Lawyers, Guns & Money. He earned a Ph.D. in English Literature from the University of California, Irvine in 2008.
 
 
 
 
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