A federal judge ruled this week that the National Security Agency’s (NSA) dragnet collection of information on all phone calls likely violates the Constitution.
In a 68-page Memorandum Opinion issued on December 16, Judge Richard J. Leon of the United States District Court for the District of Columbia ruled that the NSA’s unwarranted surveillance of telephone calls is prohibited by the Fourth Amendment’s protections against unreasonable searches and seizures.
Judge Leon begins his analysis of the plaintiff’s Fourth Amendment claim by establishing the actions of the government that are being challenged. He notes that the government:
indiscriminately collects their [the plaintiff's] telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets.
That about sums up the wholesale monitoring activity of the NSA that was revealed in the cache of documents released (so far) by former NSA subcontractor Edward Snowden.
In what will likely be considered a landmark statement of Fourth Amendment jurisprudence, particularly in light of the current climate in regard to the federal government’s unbounded bulk collection of private data, Judge Leon says that “unfortunately for the government,” the time has come for courts to stop looking to a 34-year-old Supreme Court ruling for guidance in analyzing the contemporary, technologically advanced methods being used by the NSA to keep citizens under the watchful eye of government.
“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,” Leon writes.
Then, holding that the NSA’s collection of telephony metadata “likely violates the expectation of privacy,” Judge Leon said his injunction was timely since “there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!”
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