Politics

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

WASHINGTON — A federal judge ruled Monday that the National Security Agency’s daily collection of Americans’ phone records is almost certainly unconstitutional.

click image to enlarge

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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U.S. District Judge Richard Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.

Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and ordered the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, in recognition of the “significant national security interests at stake in this case and the novelty of the constitutional issues,” Leon wrote in a 68-page opinion.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful.

A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.

The challenge to the NSA’s once-classified collection of phone records is one of a series of cases filed in federal court since the program’s existence was revealed in June by former NSA contractor Edward Snowden.

Snowden praised the ruling in a statement made to journalist Glenn Greenwald, who received NSA documents from Snowden and first reported on the program’s existence.

“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” said Snowden, who has received temporary asylum in Russia, where he is seeking to avoid U.S. prosecution under the Espionage Act for leaking NSA documents. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The ruling also comes as Congress is debating whether to end the NSA’s “bulk” collection of phone data or endorse it in statute. The White House, U.S. officials say, supports maintaining the program.

“It will be very difficult for the administration to argue that the NSA’s call-tracking program should continue when a federal judge has found it to be unconstitutional,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which has also sued the government over the program’s constitutionality.

But George Washington University law professor Orin Kerr said, “It gives opponents of the NSA program more fuel to add to the fire, but its legal impact is quite limited because the case now just goes to the court of appeals.”

Both of Maine’s U.S. senators – Republican Susan Collins and independent Angus King – serve on the Senate Intelligence Committee responsible for overseeing the NSA and the nation’s other spy agencies.

King said Monday night that he “welcomed the court’s engagement on the issue” but that he had not read Leon’s complete ruling yet.

While not necessarily criticizing collection of the metadata, King has said he is concerned about how it might be used and about allowing the government to hold onto the information. He also sponsored an amendment to an intelligence bill that required the intelligence agencies to report to overseers whenever they queried the metadata.

(Continued on page 2)

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