December 17, 2013

NSA phone snooping likely illegal, court rules

Disagreeing with a secret court, the federal judge says the data collection amounts to unreasonable searches.

Ellen Nakashima And Ann E. Marimow
The Washington Post

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A sign marks the National Security Agency campus in Fort Meade, Md. A federal judge says the NSA’s bulk collection of phone records violates the Constitution’s ban on unreasonable searches. The judge put his decision on hold pending a nearly certain government appeal.

The Associated Press

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Ultimately, however, Congress must try to strike a balance between the constitutional requirements to “provide for the common defense” while protecting the Fourth Amendment’s privacy protections, he said.

“I welcome the scrutiny,” King said. “I look forward to participating in the Congress about how to strike the right balance. But ultimately the courts are going to determine whether or not we did it adequately.”

Collins could not be reached for comment Monday evening and her office did not immediately respond to requests for comment.

In a June speech to the World Affairs Council of Maine, Collins defended the telephone data collection program and repeated statements from the NSA’s director, Gen. Keith Alexander, that the surveillance system had detected and thwarted “dozens” of terrorist plots.

“As Congress and the American public learn more about this program, however, there remain questions that must be asked and issues we must address,” Collins said at the time, according to her prepared remarks. “But in doing so, we should not assume a trade-off between liberty and security. Security ensures our freedom.”

The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, which involved the surveillance of one criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information.

A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling.

But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with.

“Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances – the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.”

Kerr said Leon is wrong to suggest that Smith no longer applies. That decision, he said, draws a clear distinction between the collection of data on numbers dialed and on call content. The metadata information the government is gathering today, Kerr said, is the same type of information the court said law enforcement could collect more than 30 years ago.

“The opinion is more valid now than it was,” Kerr said, adding that “it’s up to the Supreme Court to overturn its decision, not trial judges.”

Klayman, the founder of the public interest group Freedom Watch, called Leon’s ruling “courageous.”

“This is a warning to both parties that they’d better start observing the rule of law and protecting the American people or there will be severe consequences,” he said.

Leon rejected the government’s argument that Klayman and a co-plaintiff – the father of an NSA cryptologist killed in Afghanistan in 2011 – lacked standing to bring the suit, because they were customers of Verizon Wireless, which has not been publicly revealed as taking part in the program.

“The government,” he said, says it has created a “comprehensive” database – “in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States.”

Yet, at the same time, he wrote, the government asserts that the plaintiffs lack standing “based on the theoretical possibility” that the NSA has not collected Verizon’s records. “Candor of this type defies common sense and does not exactly inspire confidence!” he wrote.

To draw an analogy using a Beatles rock band reference, he wrote that omitting Verizon Wireless, AT&T or Sprint “would be like omitting John, Paul and George” and building a “Ringo-only database.”

Also Monday, Verizon Communications – the parent company of Verizon Wireless – filed a motion to be dismissed as a defendant in the case, based in part on a certification also filed Monday by the deputy attorney general that the company has immunity against lawsuits since it was compelled by a court order to comply with the government’s request for data. That immunity was authorized under a 2008 law known as the FISA Amendments Act.

Press Herald Washington Bureau Chief Kevin Miller contributed to this report.

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