A federal judge ruled Monday that the National Security Agency’s gathering of data on all telephone calls made in the United States appears to violate the Constitution’s protection against unreasonable searches.
The judge, Richard Leon of U.S. District Court in Washington, said that the NSA relied on “almost-Orwellian technology” that would have been unimaginable a generation ago, at the time of a landmark Supreme Court decision on phone records.
Leon, an appointee of President George W. Bush, ruled in favor of two Americans who challenged the NSA program and wanted their data removed from NSA records. The judge found that the two were likely to prevail under the Fourth Amendment, the Constitution’s protection against unreasonable search and seizure.
The judge put his ruling on hold to allow the government to appeal. White House press secretary Jay Carney was asked about the ruling at a briefing shortly after it became public and said that he was not yet aware of it.
Leon said that the government was acting in an “understandable zeal to protect our homeland,” and acknowledged that there were national security interests and new constitutional issues in play.
He batted away the government’s argument that removing certain people from the NSA database would degrade the program.
“I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations,” he wrote, “and so I am certainly not convinced that the removal of two individuals from the database will ‘degrade’ the program in any meaningful sense.
“I will leave it to other judges to decide how to handle any future litigation in their courts,” he added.
Leon wrote that the government was justifying its counterterrorism program based on a 34-year-old Supreme Court precedent that has been eclipsed by “technological advances and a cell phone-centric lifestyle heretofore inconceivable.”
That Supreme Court precedent held that Americans had no privacy interest to keep the government from accessing records stored by phone companies.
“The relationship between the police and the phone company” a generation ago, the judge said, “is nothing compared to the relationship that has apparently evolved over the last seven years between the government and telecom companies.”
“It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government,“ the judge wrote.
Leon also brushed aside arguments that the federal snooping has prevented imminent acts of terrorism.
“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,” he wrote.
The plaintiffs brought their case June 6, one day after the British newspaper The Guardian published the first revelations from Edward Snowden, the former federal contractor who exposed details of massive government surveillance programs.
“Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights," Snowden said in a statement. "It is the first of many.”
Snowden has been granted temporary asylum by Russia.
In an MSNBC interview, former Guardian reporter Glenn Greenwald, who broke the story about the NSA program, called the judge’s ruling an “important vindication” for Snowden.
President Barack Obama will address “national security and the economic impacts of unauthorized intelligence disclosures” in a meeting with executives from 15 leading tech companies on Tuesday, the White House said. The meeting will also cover technical issues with HealthCare.gov and ways the government can partner with the technology industry.
First published December 16 2013, 2:00 PM