In a ruling on constitutional claims brought against the National Security Agency’s bulk data collection program, which collects the phone records of all Americans, a federal judge ruled the program infringes upon the “degree of privacy” America’s founders “enshrined in the Fourth Amendment.”
Judge Richard Leon of the US District Court for the District of Columbia called the technology used for the program “almost Orwellian” and, referring to the indiscriminate nature of “general warrants” that led to the Fourth Amendment, wrote, “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.”
“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” Leon added.
Attorney Larry Klayman, founder of Freedom Watch and Charles Strange, father of Michael Strange, an NSA cryptologist technician and Navy support personnel for SEAL Team VI, who was killed in Afghanistan when his helicopter was shot down, were the plaintiffs in the lawsuit. (A nearly identical suit against the program was previously filed by the ACLU.)
The judge issued an order barring the government from collection of any phone metadata associated with the Verizon accounts of Klayman or Strange and “any such data collected through bulk collection” was ordered to be destroyed. However, a stay of the order was issued pending government appeal, which Leon expected was inevitable.
Former NSA contractor Edward Snowden, the whistleblower responsible for revealing the NSA program and making it possible for this judge to rule it was “likely unconstitutional,” said in a statement from journalist Glenn Greenwald:
I acted on my belief that the N.S.A.’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. 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.
Senator Ron Wyden, who has championed efforts to rein in NSA surveillance powers, released a statement, “Judge Leon’s ruling hits the nail on the head. It makes clear that bulk phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said.”
“The court noted that this metadata can be used for ‘repetitive, surreptitious surveillance of a citizen’s private goings on,’ that creates a mosaic of personal information and is likely unconstitutional,” Wyden described. “This ruling dismisses the use of an outdated Supreme Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans’ records. It clearly underscores the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans’ records.”
The “outdated Supreme Court decision” is Smith v. Maryland. ACLU’s Jameel Jaffer also highlighted this aspect of the ruling, “The idea that this narrow precedent authorizes the government to place every American under permanent surveillance is preposterous.”
“We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA’s surveillance activities back in line with the Constitution. The bipartisan USA Freedom Act, which has 130 co-sponsors already, would address the constitutional problems that Judge Leon identifies,” Jaffer concluded.
One of the most significant aspects of the judge’s decision is the part that challenged the government’s claims about how effective the program had been in fighting 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,” the judge found. “In fact, none of the three “recent episodes” cited by the government that supposedly ‘illustrate the role of telephony metadata analysis can play in preventing and protecting against terrorist attack’ involved any apparent urgency.”
Here is a key excerpt:
In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified” Assistant Director Holley does not say that the metadata revealed any new information—much less time-sensitive information —that has not already come to light in the investigation up to that point. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his US based planning effort.” And in the third, the metadata analysis “revealed a previously unknown number for [a] a co-conspirator…and corroborated his connection to [the target of the investigation] as well as to other US-based extremists.” Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack. Assistant Director Holley even concedes that bulk metadata analysis only “sometimes provides information earlier than the FBI’s other investigative methods and techniques.”
Given the limited record before me at this point in the litigation—most notably, the utter lack of evidence that a terrorist attack has ever been prevented searching the NSA database was faster than other investigative tactics—I have serious doubts about the efficacy of the metadata collection in cases involving imminent threats of terrorism.” [emphasis added]
NSA director Gen. Keith Alexander has tried to use fear (“Threats are growing”) to save the NSA from having to end its surveillance program collecting all Americans’ phone records. He said in a “60 Minutes” segment that seemed like NSA-sponsored propaganda that his concern is “what’s going on in the Middle East, what you see going on in Syria, what we see going on– Egypt, Libya, Iraq, it’s much more unstable, the probability that a terrorist attack will occur is going up. And this is precisely the time that we should not step back from the tools that we’ve given our analysts to detect these types of attacks.”
Syria, Egypt, Libya, Iraq and other countries have been unstable and “volatile” for some time. No individuals intending to do America harm have been stopped because of the program collecting and storing phone records.
The evolution of technology since Smith v. Maryland three decades ago played a significant role in the judge’s decision as well. ”People in 2013 have an entirely different relationship with phones than they did thirty-four years ago. As a result, people make calls and send text messages now that they would not (really, could not) have made or sent back when Smith was decided,” the judge found.
In contrast to surveillance involving pen registers deemed constitutional by Smith v. Marlyand, he noted the metadata program involves “creation and maintenance of a historical database containing five years’ worth of data. And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”
Also, he acknowledged, “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 operate what is effectively a joint intelligence-gathering operation with the government.”
The way the program is setup, the NSA can proceed “surreptitiously” and evade “ordinary checks that constrain abusive law enforcement practices: limited police…resources and community hostility,” the judge further concluded.
Incredibly, the government’s inconsistency in arguments before the court seem to have played a role in the decision (at minimum, they infuriated the judge).
The government wanted the judge to “infer that the NSA may not have collected records from Verizon Wireless or any other company like AT&T and Sprint. At the same time, the government claimed the program can function “because it ‘creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks and that can be immediately accessed as new terrorist-associated telephone identifiers come to light.’”
Put simply, the government wants it both ways. Virtually all the government’s briefs and arguments to this court explain how the government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism—in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers. Yet in one footnote, the government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!
Klayman appears to have been somewhat lunatic when he was before the judge. When asked if he could prove that the NSA had done any queries for his name, he told the judge, “I think they are messing with me,” and claimed his clients and him had received “inexplicable text messages and emails, not mention a disk containing a spyware program.” But none of this was what the judge wanted in order to find in favor of Klayman.
In any case, the government bailed him out through their explanations to the court, which ultimately led the judge to find that “everyone’s metadata” is being “analyzed, manually or automatically,” by the government when it runs a query for any phone number “for which the NSA has not collected metadata.” That was enough to help him decide that both the collection and the analysis are two separate searches that constitute violations of reasonable expectations of privacy.
This is critical because it blows to pieces claims by NSA defenders that collection is not intrusive and that a person’s data is not being searched until it is queried.
Finally, the judge mentioned that the government had claimed it would be “burdensome to comply with any order that requires the NSA to remove plaintiffs from its database.” To which the judge stated, “Of course, the public has no interest in saving the government from the burdens of complying with the Constitution!”