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Judge Says NSA's 'Almost-Orwellian' Data Collection Likely Violates Constitution Judge Says NSA's 'Almost-Orwellian' Data Collection Likely Violates Co...

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Defense

Judge Says NSA's 'Almost-Orwellian' Data Collection Likely Violates Constitution

General Keith Alexander, Director of the National Security Agency, testifies before the House Select Intelligence Committee June 18, 2013 in Washington, DC.(Getty Images)

December 16, 2013

For the first time, a public court has determined that the National Security Agency's collection of metadata on Americans' phone calls probably violates the Constitution and should be stopped.

That's the short version of a ruling on the NSA's bulk collection of phone records released by the D.C. District Court on Monday. The injunction ruling determined that the plaintiffs had standing to file a lawsuit — in other words, that they were affected by the NSA's data collection — and that a court would likely find that the collection violated the Fourth Amendment of the Constitution. Given that the plaintiffs suffered "irreparable harm" from the data collection, the court determined that the data collection should be halted — though that order was withheld, pending appeal.

 

The decision, responding to a lawsuit initiated by Judicial Watch's Larry Klayman, was written by U.S. District Court Judge Richard Leon, a George W. Bush appointee. Leon doesn't mince words in his critique, suggesting that the technology involved renders past judicial determinations inapplicable. The NSA gathers on-going data on phone calls placed and their length, the sort of thing that once needed to be done on a line-by-line basis.

"[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States," Leon writes, "is unlike anything that could have been conceived in 1979," when the Supreme Court case of Smith v. Maryland first allowed the government to collect such data. "The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction."

But what Leon found most important in rejecting the argument was that the information included in that call metadata was itself broader.

It is now safe to assume that the vast majority of people reading this opinion have at least one cell phone within arm's reach. … In fact, some undoubtedly will be reading this opinion on their cell phones. … Cell phones have also morphed into multi-purpose devices. They are now maps and music players. They are cameras. They are even lighters that people hold up at rock concerts. … Count the phones at the bus stop, in a restaurant, or around the table at a work meeting or any given occasion. Thirty-four years ago, none of those phones would have been there.

"The ubiquity of phones," Leon continues, "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 issue of standing has long been one of ths tumbling blocks for those looking to call the NSA's activity into question. In February — before the leaks from Edward Snowden that are directly cited as the inspiration for this lawsuit — the Supreme Court threw out a challenge to the NSA's warrantless wiretapping program because the ACLU and other plaintiffs couldn't prove they'd been affected by it. The Snowden leaks made obvious that every American has had his or her phone metadata collected.

Monday's ruling — even though its judgment is stayed pending an appeal — will provide ammunition to those who've sought to eliminate the NSA's ability to collect phone metadata. There are multiple bills before Congress right now that would refine the Patriot Act's Section 215 to eliminate the ability to collect this information; President Obama's own panel recommending reforms will apparently offer some restrictions on the practice.

In other words, the program, already faltering, may have just received its death blow.

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