NSA phone metadata collection program “likely violates constitution”: Judge

“The government should now commit to destroying the call records that it collected illegally — not just its database of ‘raw’ data but any subsidiary databases that include query results,” wrote Klayman in a statement.

Judge Leon found that the government hid behind a veil of secrecy in order to conduct the “likely unlawful” activity. “To them, it is pure ‘conjecture’ that ‘records of Plaintiffs’ calls have been’ or ‘will be’ reviewed ‘during the remaining two months of the Section 215 program,’” he wrote. “I wholeheartedly disagree.”

The Times notes that the Snowden revelations of the bulk metadata collection program raised both statutory and constitutional grounds. In December 2013, Judge Leon ruled that it was most likely unconstitutional, but he issued no order at the time, permitting the Court of Appeals for the District of Columbia to review his ruling.

On Monday Leon pointedly said he regretted not issuing the injunction when he first ruled on the case, and that his faith in the appeals system had been misplaced. “In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised,” he wrote. “I did so with the optimistic hope that the appeals process would move expeditiously.”

“However, because it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm,” he continued, “I will not do so today.”

A week after Leon’s December 2013 decision, in a different case, a federal judge in New York ruled that the program was legal. The federal appeals court in New York subsequently ruled that the collection program was not based on a legitimate interpretation of the Patriot Act, but sidestepped the constitutional question.

The Times writes that Judge Leon’s ruling that the bulk collection was most likely unconstitutional was interesting because in 1979, the Supreme Court ruled that metadata was not protected by the Fourth Amendment.

The Supreme Court’s ruling was based on the understanding that people have no reasonable expectation of privacy over information they reveal to a third party, but that case involved one criminal suspect’s calls over a period of several days, not the collection of call records of every American and the storage of them over a five-year period.

Judge Leon argued that advancing technological capabilities had brought call records – metadata – under Fourth Amendment protections. The Times notes that last summer, an appeals court overturned Leon’s ruling because there was not enough evidence that the plaintiffs in the case before Judge Leon, including Klayman, had their calls information collected by the NSA program. The reason: Klayman was a not a customer of the Verizon subsidiary detailed in the documents leaked by Snowden.

Judge Leon suggested to Klayman to add a plaintiff who was a customer of the Verizon subsidiary, and Klayman added California trial lawyer J. J. Little.

“Judge Leon issued the injunction on Monday for Mr. Little’s records, not Mr. Klayman’s,” the Times reports.