A Federal Judge Laid the Smackdown on the NSA's Phone Tapping

A federal judge ruled this afternoon that the National Security Agency's sweeping phone surveillance program likely violates the 4th Amendment ban on unreasonable search and seizures.

In what's the first major legal hurdle thrown at the NSA's domestic dragnet program, which monitors the vast majory of incoming and outgoing domestic telephone calls, US District Court Judge Richard Leon lodged "a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients," Politico reports.

That would be Larry Klayman, the conservative legal activist who filed a lawsuit with the ACLU claiming that the NSA's mass call tapping undercuts Americans' constitutionallly protected rights to privacy, free speech, and association.

Larry Klayman to me on NSA suit: "I'm not trying to beat my own chest, but this is the equivalent of winning the Superbowl."

— Ryan J. Reilly (@ryanjreilly) December 16, 2013

You can read Leon's full 68-page ruling, but here's the crux:

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 it and analyzing it without judicial approval.

He stayed the order, to be sure, allowing for what should be the inevitable NSA appeal. And while the injuction doesn't call for any sort of clear-cut ruling on the constitutionality of the case, it does leave room for whichever side Leon believes will win.

Leon also went on to add that the Justice Department doesn't have a leg to stand on when it claims it demonstrated that potential terrorist attacks were squashed on account of the NSA's scooping of almost incomprehensibly large amounts of information. For the last seven years, the DoJ persuaded judges on the secret Foreign Intelligence Surveillance Court that "the collection of information on the time and length of calls, as well as the numbers called, did not amount to a search under the Fourth Amendment" as that very information is regularly at the disposal of telephone firms for billing purposes and is also shared voluntarily with said firms, according to Politico.

Those FISA judges, together with government lawyers, who've insisted that the NSA's program is legal, have time and again fallen back on a 1979 Supreme Court ruling as legel precedent. Smith v. Maryland ruled that police needed no search warrant to install a device to monitor numbers dialed out from a given phone line.

But Leon wrote on Monday that that three-decade-old precedent isn't applicable to something like the NSA's domestic dragnet, which stretches far, far beyond American soil. The program is too sophisticated. Besides, phone use over just the past three of four years has ticked up dramatically.

“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” Leon wrote. “I cannot possible navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

In the end, Leon concluded that seaches under the auspice of the NSA's metadata progam were "likely not permissible under the Fourth Amendment," Politico adds, in part because there's scant evidence that the program really and truly proved a bulwark to terrorism.

“I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “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.”

We'll have more as the story develops. For now, we can only ruminate on some of the more crucial questions that 60 Minutes puff piece should've asked the NSA.

@thebanderson