NSA Loses a Round

jp-NSA-articleLargeWASHINGTON — A Federal District Court judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history. New York Times, December 16, 2013.

This is the first court case resulting directly from the revelations of Edward Snowden. It is perhaps paradoxical that the plaintiffs’ lawyer is a well-known conservative activist, and that the judge was appointed by George W. Bush. But it is no less paradoxical that Barack Obama’s administration is defending the NSA’s legal right to cast such a wide net for telephony metadata.

Federal District Judge Richard Leon, of the District of Columbia, wrote a 68-page decision, not on the substance of the lawsuit, but on the preliminary question of whether the suit should be dismissed. He refused to do so on the grounds that there was a high likelihood that the government would ultimately lose the case.

Judge Leon rejected the main legal precedent that the Foreign Intelligence Surveillance Court has used to authorize the NSA program. That precedent is a 1979 case that found no violation of constitutional rights occurred when the government gathers “metadata,” such as phone numbers dialed and duration of calls, so long as there is not actual tapping into the content of communications. Leon, however, found that because phones are so much more prominent in people’s everyday lives now than in 1979, and data-gathering methods are so much more sophisticated, the NSA program must now be seen as an unconstitutional infringement on people’s rights.

The judge nonetheless stayed execution of his order to allow the government to appeal. He acknowledged substantial national security issues, and the federal courts have generally been quite deferential to the government when national security is invoked. Thus, until Snowden’s revelations, the courts allowed the government to block lawsuits of this kind with Catch-22 logic: the plaintiff cannot prove that s/he has been subjected to surveillance, and the government cannot be required to provide that information if it alleges that national security would thereby be endangered.

john peelerIt is thus likely that appeals courts and the Supreme Court will ultimately back the government’s position, but at least the issues can now be argued in court.

Thank you, Edward Snowden!

John Peeler

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