Judge Doubts NSA Program Is Constitutional — but Upholds It Anyway

An Idaho federal judge urges the Supreme Court to address the spying controversy.

National Journal
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Brendan Sasso
June 3, 2014, 3:44 p.m.

A fed­er­al judge in Idaho up­held the NSA’s con­tro­ver­sial phone sur­veil­lance pro­gram Tues­day.

But Judge B. Lynn Win­mill seemed to in­vite the Su­preme Court to over­turn his de­cision. He sug­ges­ted that the pro­gram, which col­lects data on mil­lions of U.S. phone calls, likely vi­ol­ates the Fourth Amend­ment’s pro­hib­i­tion of un­reas­on­able searches and seizures.

Win­mill up­held the pro­gram be­cause he con­cluded that his hands were tied by cur­rent Su­preme Court pre­ced­ent.

He poin­ted to the Su­preme Court’s 1979 de­cision in Smith v. Mary­land, which held that people don’t ex­pect pri­vacy in the phone num­bers they dial.

The con­tro­ver­sial NSA pro­gram, which was re­vealed by Ed­ward Snowden last year, col­lects “metadata” such as phone num­bers, call times, and call dur­a­tions, but not the con­tents of any con­ver­sa­tions.

Last year, Richard Le­on, a fed­er­al judge in Wash­ing­ton, D.C., ruled that the pro­gram was likely un­con­sti­tu­tion­al. Le­on ar­gued the NSA’s sur­veil­lance is far great­er than what the court en­vi­sioned in Smith v. Mary­land, and that the ubi­quity of cell phones means that metadata is more re­veal­ing than it used to be.

In Tues­day’s de­cision, Win­mill wrote that Le­on craf­ted a “thought­ful and well-writ­ten de­cision.”

“Judge Le­on’s de­cision should serve as a tem­plate for a Su­preme Court opin­ion,” he wrote. “And it might yet.”

But he con­cluded that he is bound to fol­low the Smith rul­ing un­til the Su­preme Court over­turns it. 

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