“Orwellian” NSA Phone Spying Probably Unconstitutional, Rules Outraged Federal Judge

Wednesday, December 18, 2013
Judge Richard Leon (photo: Donahue Lecture Series, Suffolk University)

The National Security Agency’s (NSA) bulk collection of Americans’ phone data is probably unconstitutional and “almost Orwellian,” a federal judge ruled this week.


Hearing a legal challenge to the agency’s controversial surveillance program, U.S. District Judge Richard J. Leon said the NSA had violated “a reasonable expectation of privacy,” which would represent a violation of the Fourth Amendment.


“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,” Leon wrote.


He described the agency’s spy technology as “Orwellian,” and added that “the author of the Constitution, James Madison...would be aghast” by the NSA’s work. “While Congress has great latitude to create statutory scheme like FISA, it may not hang a cloak of secrecy over the Constitution.” The FISA Court is the judicial body that, loosely speaking, oversees the NSA’s surveillance operation.


Regarding the issue of invasive technology versus privacy, Leon wrote: “Whereas some may assume that these cultural changes will force people to 'reconcile themselves' to an 'inevitable' 'diminution of privacy that new technology entails,' I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable.”


Leon also questioned the “efficacy” of the NSA’s program, noting that the government 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.”


The case arose from a lawsuit by conservative legal activist Larry Klayman, who represented himself and other plaintiffs.


“We believe the [NSA] program is constitutional as previous judges have found,” said Justice Department spokesman Andrew Ames in response to the ruling.


Fifteen judges have previously ruled, on 35 occasions, that the NSA’s bulk phone data program is legal—but each of those judges served on the secret FISA Court, which critics view as more or less a rubber stamp for the agency. Leon is the first federal judge outside of that court who has examined the data collection in a case not involving a criminal defendant.


In his 68-page ruling (pdf), Leon ordered the government to purge its system of any phone records belonging to the plaintiffs and prohibited the NSA from collecting any more records belonging to them in the future.


Klayman praised the decision, calling Leon “an American hero.”


“I’m extremely gratified that Judge Leon had the courage to make this ruling,” he told The New York Times. The judge was appointed to the bench by President George W. Bush in 2001 and confirmed the following year.


“Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights,” Edward Snowden, who exposed the NSA program, said in a statement. He predicted that this, the first successful legal challenge to the government surveillance operation, “is the first of many.”


Leon stayed the order pending appeal by the Obama administration because of the significant nature of his ruling. He estimated that that appeal could take about six months to be made.

- Danny Biederman, Noel Brinkerhoff


To Learn More:

In Historic Ruling, Federal Judge Declares NSA Mass Phone Surveillance is Likely Unconstitutional (by Trevor Timm, Electronic Frontier Foundation)

After Ruling Critical of N.S.A., Uncertain Terrain for Appeal (by Adam Liptak, New York Times)

Judge Questions Legality of N.S.A. Phone Records (by Charlie Savage, New York Times)

Judge: NSA’s Collecting of Phone Records is Probably Unconstitutional (by Ellen Nakashima and Ann E. Marimow, Washington Post)

Memorandum Opinion: Klayman et al., v. Obama et al. (U.S. District Court for the District of Columbia) (pdf)

NSA Violated U.S. Privacy Laws at Least 2,776 Times…In One Year (by Matt Bewig, AllGov)

Left and Right Unite to Sue NSA over Telephone Records Surveillance (by Matt Bewig, AllGov)

Court Throws out Obama Administration’s State Secrets Defense in NSA Surveillance Case (by Noel Brinkerhoff and Danny Biederman, AllGov)

Richard Leon: A Judge at a Fork in the Road (AllGov)


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