The Two-Way
2:18 pm
Mon December 16, 2013

Federal Judge Rules NSA Bulk Phone Record Collection Unconstitutional

Originally published on Mon December 16, 2013 3:31 pm

A federal judge in Washington says the National Security Agency's program for bulk phone record collection violates Americans' reasonable expectation of privacy.

The ruling (pdf), however, has been stayed pending a likely appeal.

Judge Richard Leon says the sweeping NSA collection of U.S. phone metadata constitutes an unreasonable search or seizure under the Fourth Amendment.

The judge says the Smith v. Maryland Supreme Court ruling the Obama administration has used to underpin that program involved only a short period of collection, not the years-long approach the NSA has been taking based on advances in technology.

In sometimes blistering language, Leon, who was appointed by President George W. Bush, says times have changed since 1979, when Maryland was decided. Leon says advances in technology and people's use of cellphones mean that old case law no longer holds.

In the Maryland case, the Supreme Court found that dialing a number was akin to calling an operator and asking to be connected to someone. When you hand that information to a third party, the court found, a person loses his expectation of privacy. Police, therefore, did not need a warrant to obtain "pen register" data from phone companies. The Obama administration has argued that the metadata — things like number dialed, time and duration of call — it collects in bulk are likewise exempted from Fourth Amendment protection.

In his opinion, Leon also questions the government's assertion that this program is designed to protect Americans.

"Turning to the efficacy prong, 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 achieving any objective that was time- sensitive in nature," the judge writes.

The judge has ordered authorities to stop collecting data on two Verizon cellphone accounts. One belongs to conservative lawyer Larry Klayman, a plaintiff in the case.

But the judge has agreed to hold off on enforcing his decision to give the Justice Department time to appeal.

A spokesperson for the Justice Department said they reviewing the court's decision.

"We believe the program is constitutional as previous judges have found," Andrew Ames said. "We have no further comment at this time."

A similar case filed by the ACLU is moving through the courts in New York, but no ruling has emerged yet.

One of the challenges could wind up at the U.S. Supreme Court.

Update at 3:08 p.m. ET. Without Trampling Civil Liberties:

Colorado Sen. Mark Udall, who has led the charge along with Sen. Ron Wyden of Oregon, in opposing some NSA programs, hailed the decision.

"The ruling underscores what I have argued for years: The bulk collection of Americans' phone records conflicts with Americans' privacy rights under the U.S. Constitution and has failed to make us safer," Udall said in a statement. "We can protect our national security without trampling our constitutional liberties. This court ruling only underscores the urgent need for Congress to act and pass my bipartisan bill to ensure the NSA focuses on terrorists and spies — and not innocent Americans."

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