Federal judge rules NSA bulk data collection is likely unconstitutional
A federal judge ruled yesterday that the bulk collection of telephone metadata by the National Security Agency is likely unconstitutional because the program “almost certainly does violate a reasonable expectation of privacy” guaranteed by 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 and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment”, wrote U.S. District Court Judge Richard J. Leon in Klayman v. Obama. “Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power’, would be aghast.”
Leon issued an injunction to prohibit the U.S. government from collecting the telephone metadata from two plaintiffs’ – Larry Klayman and Charles Strange – Verizon Wireless accounts and required the government to destroy Kayman’s and Strange’s metadata that has already been collected.
However, Leon stayed his order pending appeal “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues”. The appeal process is expected to take at least 6 months.
The lawsuit was filed by Klayman – an attorney and founder of Freedom Watch and Judicial Watch, which are conservative public advocacy organizations – shortly after former NSA contractor Edward Snowden disclosed that the NSA has been collecting and storing metadata – such as the phone numbers dialed, date, time, and duration of calls – of nearly all phone calls made in the United States.
In his complaint, Klayman accused the government and private companies, such as Verizon, of conducting a “secret and illegal government scheme to intercept and analyze vast quantities of domestic telephonic communications.”
Leon sided with Klayman, ruling that NSA’s bulk data collection practice appears to violate the Fourth Amendment, which protects individuals from unreasonable searches by the government. Leon is the first non-FISA court judge to rule that the NSA’s program is unconstitutional.
The NSA, which started the bulk data collection program in 2006, would use the metadata to search for links between U.S. phone numbers and numbers associated with “one or more of the specified foreign terrorist organizations” approved for surveillance by the FISA court. These phone records are retained by the NSA for 5 years. In several testimonies before Congress, intelligence officials maintained that the bulk data collection program is needed to “connect the dots” to thwart potential terrorist attacks on U.S. soil after 9/11.
Although intelligence officials tried to downplay the extent of the bulk collection program’s impact by reporting that less than 300 phone numbers were approved for queries in 2012, Leon pointed out that “it is likely that the quantity of phone numbers captured in any given query would be very large”. The judge noted that the NSA goes beyond looking at the numbers that have been been in direct contact with the phone number approved for query. The NSA query also returns results of numbers dialed or received by the phone numbers that have been in direct contact with the queried number. The NSA can track up to 3 “hops” of numbers directly or indirectly connected with the original number searched.
Leon used this example to illustrate the wide-ranging impact a single query can have:
“This means that if a search starts with telephone number (123) 456-7890 as the ‘seed’, the first hop will include all the phone numbers that (123) 456-7890 has called or received calls from in the last five years (say, 100 numbers), the second hop will include all the numbers that each of those 100 numbers has called or received calls from in the last five years (say, 100 numbers for each of the 100 ‘first hop’ numbers or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the last five years (say, 100 numbers for each of the 10,000 ‘second hop’ numbers, or 1,000,000 total).”
Leon noted that given the “rapid and monumental shift towards a cell phone-centric culture”, the telephone metadata could reveal more personal details – including their ‘political, professional, religious, and sexual associations” – about people’s lives now than in 1978 when FISA was first enacted by Congress.
Leon also dismissed arguments that telephone subscribers have no “reasonable expectation of privacy” when it comes to their metadata according the precedent set by Smith v. Maryland.
“In Smith, the court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program,” he explained. “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.”
While the government needs to have the ability to prevent terrorist attacks, Leon stated that the government’s national security interests must also be balanced with people’s constitutional right to privacy.
In this case, according to Leon, the government has not presented any evidence showing that the NSA’s bulk data collection program is any more effective in detecting terrorist threats than other less intrusive investigative methods. And although the government has argued that the NSA program allows investigators to identify potential terrorists ties faster, Leon cited the “utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics” for his ruling in favor of the plaintiffs.
The American Civil Liberties Union (ACLU), which has filed a similar lawsuit challenging the constitutionality of NSA’s surveillance program, described Leon’s decision as “carefully reasoned”.
“The NSA’s call-tracking program can’t be squared with the Constitution,” according to a statement by ACLU Deputy Legal Director Jameel Jaffer. “We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers.”
Sen. Dianne Feinstein (D-California), who chairs the Senate Intelligence Committee and supports the NSA’s phone records program, said “only the Supreme Court can resolve the question on the constitutionality of the NSA’s program.”
“Those of us who support the call records program do so with a sincere belief that it, along with other programs, is constitutional and helps keep the country safe from attack. I believe the program can benefit from additional transparency and privacy protections—including additional public reporting and added court review provisions which were recently adopted by the Senate Intelligence Committee in the bipartisan FISA Improvements Act,” Feinstein stated.
- U.S. District Court for the District of Columbia: Klayman v. Obama memorandum of opinion – Dec. 16, 2013 (PDF)
- U.S. District Court for the District of Columbia: Judge Richard J. Leon’s bio
- Larry Klayman’s website
- Freedom Watch: Court declares NSA spying program unconstitutional and grants Larry Klayman’s preliminary injunction
- ACLU.org: Judge rules against NSA on phone data collection
- ACLU.org: ACLU v. Clapper – Challenge to NSA mass call-tracking program
- feinstein.senate.gov: Feinstein statement on NSA call records ruling
- WhatTheFolly.com: Transcript: Q&A with Rep. Peter King (R-N.Y.) on the leaked NSA surveillance programs before the House Intelligence Committee on June 18, 2013
- WhatTheFolly.com: Washington Post: NSA collecting nearly 5 billion cellphone location records per day
- WhatTheFolly.com: Microsoft will expand encryption in response government ‘snooping’
- WhatTheFolly.com: Documents released by Edward Snowden reveal NSA surveillance on Germany & European allies
- WhatTheFolly.com: U.S. files Espionage Act charges against Snowden
- WhatTheFolly.com: Senators demand answers from Director of National Intelligence on NSA’s bulk data collection programs
- WhatTheFolly.com: NSA Surveillance Programs
Category: Analysis, Civil Liberties, Current Events, Feature, Government, Intelligence Community, News, Technology, U.S. · Tags: 9/11, ACLU, American Civil Liberties Union, cell phone, Charlie Strange, Constitution, database, Dianne Feinstein, Edward Snowden, federal court, FISA, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Fourth Amendment, Freedom Watch, intelligence, Jameel Jaffer, Judicial Watch, Klayman v. Obama, Larry Klayman, metadata, national security, National Security Agency, NSA, phone records, Richard Leon, Senate Intelligence Committee, Smith v. Maryland, Supreme Court, surveillance, terrorism, terrorist, terrorists, U.S., United States, US Constitution, US Supreme Court, Verizon