A US district court has ruled that the NSA's bulk collection of phone records is likely unconstitutional. Today, Judge Richard Leon granted a preliminary injunction to Verizon customers Larry Klayman and Charles Strange, saying that they were suffering harm from having his records collected and that he had made a strong case that the NSA's secret court orders, which require carriers to provide metadata on virtually all US phone calls, were likely to violate the fourth amendment. Leon ordered the government to cease collecting any metadata from the plaintiffs and destroy any that remained in surveillance databases. Practically speaking, that order doesn't change much, since that order has been delayed to allow the government time to file an appeal. But his decision also, vitally, allows the case to proceed.
Judge Leon cites an 'utter lack of evidence' that bulk metadata collection stops terrorists
In his opinion, Leon cites the huge pool of numbers that could be included in the three "hops" that analysts are allowed to make beyond a single suspicious number, as well as the mistakes, misconduct, and obfuscations described in declassified documents from the FISA court. He also says that there's little evidence the metadata collection is doing much good and complaining of the "utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics," despite claims to the contrary from the intelligence community. If that evidence is lacking, the NSA can't argue that the usefulness of having the database on hand — rather than sending orders for individual cases to phone companies — outweighs the consequences to American privacy.
Most importantly, he says that the NSA's policy has direct harmful effects on Verizon subscribers because it violates their constitutional rights — a marked contrast from previous rulings. That's partly because Leon determined that an important case involving telephone metadata no longer applies in a world in which your phone can track almost every aspect of your life. "The Government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a thirty-four-year-old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cellphone-centric lifestyle heretofore inconceivable," he writes. The decision he's talking about is Smith v. Maryland, a landmark case involving less than a week of surveillance of one subject's landline in the 1970s.
"Candor of this type defies common sense."
The Obama administration has argued that Smith v. Maryland means collecting metadata can't be defined as a search, ruling out one constitutional claim. Another part of its argument hinges on the idea that there's no way any individual plaintiff can say whether or not they were surveilled, an argument that successfully shot down lawsuits before a leaked court order showing the extent of the data collection. Leon specifically addresses one failed suit by Amnesty International, decided months before the leak. But "whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected."
Leon has strong words for the administration, which he says "wants it both ways" by arguing that the court order only refers to Verizon's business wing. As he writes:
"Virtually all of the government's briefs and arguments to this court explain how the government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism — in which case NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States. Yet in one footnote, the government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!"
This case is similar to an ACLU lawsuit that also seeks the end of the NSA's bulk data collection. Filed in New York, the case took its first major step forward in late November, when a judge heard arguments from both sides. The collection has also been challenged in Congress and by a White House review panel. The USA Freedom Act, sponsored by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI), would explicitly narrow the application of Section 215, the rule under which the NSA collects data. A panel appointed by Obama to review the intelligence community's operations, meanwhile, is allegedly recommending that the NSA cease its bulk collection. If any of these attempts succeed, the NSA will still be able to request specific records from a phone company, and its many other surveillance programs will likely not be affected, nor will its surveillance of non-US citizens.
Update: Edward Snowden, the former NSA contractor who leaked many details about the existence and scope of the NSA's phone metadata collection efforts last summer, released a statement to The New York Times this afternoon celebrating the judge's decision. As Snowden writes:
"I acted on my belief that the N.S.A.'s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many."