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. The committee heard testimony on the topic of 'how the disclosed NSA programs protect Americans from terror attacks on US soil, and why the disclosure of that classified information aids our adversaries.'
National Journal
Philip Bump, The Wire
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Philip Bump, The Wire
Dec. 16, 2013, 9:44 a.m.

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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