Federal judge: NSA's collection program violates Constitution

Judge Leon did not hide his own views:

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. For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.

Judge Leon rejected the Obama administration’s argument that a 1979 case, Smith v. Maryland, could mean to read that there is no Fourth Amendment protections for call metadata — information that does not contain to content of a phone call, but does include the numbers called and received and the date, time, and duration of the call.

The Times notes that the Foreign Intelligence Surveillance (FISA) Court has secretly approved the NSA program, accepting that the 1979 decision is a controlling precedent which protects the program from Fourth Amendment review.

Judge Leon said, however, that the scope of the program and the way people use phones today makes the NSA data collection different 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 stressed that he was not persuaded by the government’s argument that the program served the public interest, pointedly noting that it failed to 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.”

Privacy advocates welcomed Judge Leon’s ruling.

“Judge Leon’s ruling gives Fourth Amendment case law a long overdue update,” said Elizabeth Goitein of the Brennan Center for Justice’s Liberty and National Security Program. “Americans have always had a reasonable expectation of privacy in their associations and beliefs. Today, this kind of information is easily revealed through computer analysis of bulk telephone records. This ruling brings the law in line with technology.”

“This ruling decimates the NSA’s defenses of its telephone metadata program,” said the Brennan Center’s Faiza Patel. “It confirms that who we call and when is our business, not the government’s. And despite the NSA’s claim that the program is necessary, it was not able to convince the judge that metadata has been at all useful in preventing terrorist attacks.”