A federal judge's ruling that the National Security Agency's massive collection of American phone records is probably unconstitutional is a positive move toward reining in the nation's surveillance state. For the first time since former NSA contractor Edward Snowden's disclosures, a federal court determined Monday that the NSA is likely violating principles of privacy. The ruling, which will be appealed, reflects the need for federal law to be updated to reflect modern technology and still maintain constitutional protections against dragnet-type searches and seizures.
Judge Richard Leon of the U.S. District Court for the District of Columbia said the technology used by the government to sweep up all the country's telephony metadata is "almost Orwellian" in its reach and "almost certainly" violates any reasonable expectation of privacy. This is the standard used to determine whether Fourth Amendment protections against unreasonable searches and seizures are violated. Leon, who was appointed by President George W. Bush, granted challengers a preliminary injunction to prevent the continued collection of their bulk metadata and destroy what had been collected. He stayed his opinion in light of the national security interests involved to give the government time to appeal.
The government claims the program is not unconstitutional based on a 34-year-old Supreme Court precedent that has long been eclipsed by technological advances. In the 1979 case of Smith vs. Maryland, the court said no warrant was needed when police obtained a person's phone records using a device called a pen register. The court argued that this metadata collection didn't violate the Fourth Amendment because call records are business records held by a third party, the telephone company, and are not expected to be private.
But as Leon points out, this scenario bears almost no relationship to the NSA program, which began in 2006 and allows the government to collect and store all of the call records of Americans in searchable form for up to five years. This kind of indiscriminate, bulk collection of information on Americans when there is no evidence of wrongdoing is precisely what the founders sought to prevent, having been victims of much-despised general warrants themselves.
Leon also dismissed the government's claim that because it only searches and analyzes data connected to suspected phone numbers, the Fourth Amendment's prohibition against dragnet-type searches is not violated. In fact, as the judge noted, the NSA looks at communications records that are three "hops" from the target phone number, which could in each case result in the phone activity of a million or more innocent Americans being analyzed.
If the program were essential for national security, that could outweigh the privacy interests at stake. But Leon said the government did not "cite a single instance" where the data collection was key to stopping an imminent terrorist attack.
The secret Foreign Intelligence Surveillance Court has approved the program over the years, but it did so without benefit of hearing from anyone representing citizen privacy. Leon heard those arguments, and he came to the appropriate conclusion.