A Federal District Court judge said Monday that the National Security Agency’s gathering of phone records is “likely unconstitutional.” While a welcome win for privacy advocates and foes of invasive government, the ruling needs to be seen as a first step in what should be a fascinating and protracted process.
It is a good start, nonetheless. Judge Richard J. Leon of the District of Columbia granted a preliminary injunction against the government’s collecting phone records of two men who had brought a legal challenge against the program, saying they “have a substantial likelihood” of demonstrating that their privacy outweighs the government’s interest in gathering the data. His ruling was, in part, based on his contention that the data gathering is not effective in countering terrorism.
At the same time, however, the judge stayed his injunction to give time for the government to appeal it. In that, he pointed to “the significant national security interests at stake in this case and the novelty of the constitutional issues.”
That is fair. Whether with this particular case or another, this issue is almost certain to go before the Supreme Court. And however the high court sees it, that could have consequences for generations.
For his part, Leon left no doubt how he sees things. Describing the NSA’s technology as “almost Orwellian,” he wrote he “cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systemic 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.”
At issue was the collection of “metadata,” which includes numbers called, calls received, as well as dates, times and duration of calls – but not the content of calls. The government has argued that the gathering of such information is controlled by a 1979 Supreme Court case, Smith vs. Maryland. In that case, the court said there is no expectation of privacy for such data because telephone companies routinely keep that information as business records for purposes of billing.
Leon dismissed that with the simple and obvious observation that telephones have changed considerably through the years, as has how they are used.
“Put simply,” the judge wrote, “people in 2013 have an entirely different relationship with phones than they did 34 years ago. Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic – a vibrant and constantly updating picture of the person’s life.”
Moreover, he added, the ability of “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 of in 1979.”
That is strong stuff. And it reflects an interesting political alignment. The NSA data-gathering program was reveled by former NSA analyst Edward Snowden. And while it has been widely condemned by civil libertarians on the left, Leon was appointed by President George W. Bush, and the most prominent plaintiff is a right-wing activist. It is the nominal center that supports the data gathering, both in the Obama administration and the national security apparatus.
But there, too, Judge Leon had something to say. Pointing to the fact that the government did not cite a single example where the program “actually stopped an imminent terrorist attack” he wrote, “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.” If true, that makes it hard to argue security trumps rights.
This is far from the last word. But how it unfolds should be fascinating.