Federal Judge Rules Against N.S.A. Phone Data Program
By CHARLIE SAVAGE
WASHINGTON — 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.
In a 68-page ruling, Judge Richard J. Leon of the District of Columbia
called the program’s technology “almost Orwellian” and suggested that
James Madison, the author of the Constitution, would be “aghast” to
learn that the government was encroaching on liberty in such a way.
“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,” Judge Leon wrote. “Surely, such a
program infringes on ‘that degree of privacy’ that the founders
enshrined in the Fourth Amendment.”
Judge Leon stayed his injunction “in light of the significant national
security interests at stake in this case and the novelty of the
constitutional issues,” allowing the government time to appeal it, a
matter that he said could take some six months.
Vanee Vines, a spokeswoman for the N.S.A., had no immediate comment on
the ruling by Judge Leon, a 2002 appointee of President George W. Bush.
The ruling is the first successful legal challenge brought against the
program since it was revealed in June after leaks by the former N.S.A.
contractor Edward J. Snowden. It was brought by several plaintiffs led
by Larry Klayman, a conservative public-interest lawyer. The American
Civil Liberties Union has filed a similar lawsuit in the Southern
District of New York.
In a statement distributed by the journalist Glenn Greenwald, who was a
recipient of leaked documents from Mr. Snowden and who wrote the first
article about the bulk data collection, Mr. Snowden hailed the ruling.
“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,” Mr.
Snowden said. “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.”
Though long and detailed, the ruling is not a final judgment, but rather
a preliminary injunction to stop the data collection while the
plaintiffs pursued the case. It turned on whether there was a
substantial likelihood that they would ultimately succeed and whether
they would suffer substantial harm in the meantime.
But Judge Leon left little doubt about his view.
“The question that I will ultimately have to answer when I reach the
merits of this case someday is whether people have a reasonable
expectation of privacy that is violated when the government, without any
basis whatsoever to suspect them of any wrongdoing, collects and stores
for five years their telephony metadata for purposes of subjecting it
to high-tech querying and analysis without any case-by-case judicial
approval,” he wrote. “For the many reasons set forth above, it is
significantly likely that on that day, I will answer that question in
plaintiffs’ favor.”
In laying out his conclusion, Judge Leon rejected the Obama
administration’s argument that a 1979 case, Smith v. Maryland, meant
that there is no Fourth Amendment protections for call metadata —
information like the numbers called and received and the date, time and
duration of the call, but not the content.
The Foreign Intelligence Surveillance Court, which secretly approved the
N.S.A. program after hearing arguments from only the Justice
Department, has maintained that the 1979 decision is a controlling precedent
that shields the program from Fourth Amendment review. But Judge Leon
said the scope of the program and the way people use phones today
distinguishes the N.S.A. data collection from the type at issue in that
case.
“Put simply, people in 2013 have an entirely different relationship with
phones than they did 34 years ago,” he wrote. “Records that once would
have revealed a few scattered tiles of information about a person now
reveal an entire mosaic — a vibrant and constantly updating picture of
the person’s life.”
Judge Leon also emphasized that he was unpersuaded by the government’s
claims that the program served the public interest, pointedly noting
that it failed to cite “a single instance in which analysis of the
N.S.A.'s bulk metadata collection actually stopped an imminent attack,
or otherwise aided the government in achieving any objective that was
time-sensitive.”
