Saturday, January 20, 2018
Opinion

Column: Judge delivers wake-up call on privacy

If you have been lulled into a state of somnolence about former government contractor Edward Snowden's revelations that the government is collecting records of every phone call you've made, for years, it's time to snap out of it.

That's the bracing effect of U.S. District Judge Richard Leon's ruling that the National Security Agency is probably violating the Constitution with its 7-year-old program for collecting "telephony metadata" — whom you call and whom you receive calls from.

In June, when we learned about this NSA program in the first wave of news about the huge trove of documents that Snowden leaked, some responses were too dismissive, saying that what the NSA is doing isn't all that invasive, since this isn't about the contents of phone calls, and in any case, collecting and trawling through all that metadata is a crucial tool for thwarting imminent terrorist attacks. Leon didn't accept the first claim and has eviscerated the second one. This is what judicial review is all about — checking government power. And it comes from a judge appointed by President George W. Bush who has previously ruled in favor of "expansive government power," as Glenn Greenwald, breaker of much of the Snowden news, puts it.

In other words, if Leon didn't buy the government's argument about why it needs to collect and keep all this metadata, other judges — and many of the rest of us — may see it the same way.

Let's start with what the government is doing. At issue is the part of the Patriot Act, building on the Foreign Intelligence Surveillance Act, that allows the government to collect an enormous trove of phone call metadata, and then query it based on an "identifier" phone number called a "seed." A seed is a number associated with terrorist activity, based on a reasonable and articulable suspicion. Sounds okay so far.

But wait: Once you're an NSA agent with a seed, you can analyze all the numbers within three hops from that seed — meaning the numbers the seed called and received calls from, and the numbers connected to those numbers. Leon points out that if one seed calls just 100 numbers in five years, and each of the numbers in the next two hops also connects with 100 numbers, the NSA can trawl through the metadata for 1 million phone numbers.

And that's got to be a low estimate, since it doesn't take into account the possibility that someone used one of those phone numbers to order from, say, Domino's Pizza, allowing the NSA to vacuum up zillions of other callers.

The judge points out that the government's interest in collecting all this metadata isn't just to identify unknown terrorists and their plans. It's to do so faster, because otherwise, why not take the time to get a warrant, or in some other way demonstrate a particular suspicion of a target? And yet, in the most breathtaking portion of his opinion, Leon says that 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 any time-sensitive objective.

It's in part because of this woeful showing that Leon granted the motion of the plaintiffs — activists Larry Klayman and Charles Strange — for a preliminary injunction. That mean he thinks they'll likely win once the case is fully presented, by both sides, in later proceedings. But Leon also stayed his order, which means it won't go into effect while the government appeals.

The second major question Leon tackled is whether Klayman, Strange and the rest of us have a reasonable expectation of privacy to our metadata. The government says no, based a much-cited 1979 ruling in which the Supreme Court said that once you voluntarily give the phone company information about who you're calling, you have to accept the possibility that the government may search it. Leon says, essentially, that it's time to bury that old case, because in 1979, the Supreme Court could not have "have imagined how the citizens of 2013 would interact with their phones."

He continues, "It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government." He adds this great apoplectic line: "And I might add, there is the very real prospect that the program will go on for as along as America is combatting terrorism, which realistically could be forever!"

Thank you, Judge Leon, for the wake-up call.

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

© 2013 Slate

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