Cross posted from Frederick Leatherman Law Blog
In a 68-page opinion issued today, Judge Richard Leon, a judge who serves on the United States District Court for the District of Columbia, issued an important and potentially historic ruling by granting a preliminary injunction against the National Security Agency (NSA) prohibiting it from continuing its massive collection of our telephone data because there is a “substantial likelihood” that the NSA program violates our right to privacy under the Fourth Amendment.
Judge Richard Leon declared that the mass collection of so-called metadata probably violates the fourth amendment, relating to unreasonable searches and seizures, and is “almost Orwellian” in its scope.
He also expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. ‘The government does not cite a single case in which analysis of the NSA’s bulk metadata collection actually stopped an imminent terrorist attack,’ wrote Leon, a US district judge in the District of Columbia.
‘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 because searching the NSA database was faster than other investigative tactics – I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.’
The problem with the program is that it violates the particularity requirement of the Fourth Amendment.
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment clearly prohibits the government from hoovering-up all available data about all of our telephone calls, but the NSA has been doing it secretly supposedly to protect us from terrorists. Judge Leon was not impressed by that argument and it’s a relief to finally see a federal judge call bullshit on the NSA’s continuing rape of our right to privacy.
I said Judge Leon’s decision is a “potentially” historic decision because a preliminary injunction is not a permanent injunction. Judges are authorized to issue a preliminary injunction before a disputed matter goes to trial upon a showing by an aggrieved party that they are suffering and will likely continue to suffer “irreparable harm” because of the opposing party’s conduct, unless the court orders the opposing party to knock it off.
The preliminary injunction remains in effect until the litigation concludes. Depending on which side prevails, the court will either dissolve the preliminary injunction or convert it into a permanent injunction.
Judges do not often issue preliminary injunctions because they would prefer to wait and see how the litigation turns out before deciding the outcome of a case. Therefore, Judge Leon is basically telling the NSA that he thinks its national security argument is utter bullshit.
He stayed (i.e., suspended) the preliminary injunction from going into effect pending an appeal by the Justice Department, which is representing the NSA. Nothing surprising about the stay in a case of this magnitude.
Indeed, he left no doubt about his views. Here’s Ackerman and Roberts again:
But Leon’s opinion contained stern and repeated warnings that he was inclined to rule that the metadata collection performed by the NSA – and defended vigorously by the NSA director Keith Alexander on CBS on Sunday night – was unconstitutional.
‘Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata, and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment,’ he wrote.
Leon said that the mass collection of phone metadata, revealed by the Guardian in June, was ‘indiscriminatory’ and ‘arbitrary’ in its scope. ‘The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,’ he wrote in his 68-page ruling.
In a ruling likely to influence other federal courts hearing similar arguments from the American Civil Liberties Union, Leon wrote that the Guardian’s disclosure of the NSA’s bulk telephone records collection means that citizens now have standing to challenge it in court, since they can demonstrate for the first time that the government is collecting their phone data.
[Until now, plaintiffs have been unable to establish what the NSA was doing and their cases have been dismissed for lack of standing]
‘The government asks me to find that plaintiffs lack standing based on the theoretical possibility that NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function,’ Leon wrote. ‘Candor of this type defies common sense and does not exactly inspire confidence!’
To read the 68-page opinion, please go here.
Photo by Dan Maas released under a Creative Commons license.