United States District Court Judge Richard Leon has ruled that the NSA’s telephony metadata collection program is unconstitutional. The 68 page opinion, which the brave of heart can read here , goes deep into the weeds of federal judicial processes and standing issues before getting to the Constitutional point.
This is not the work of an ACLU mole on the federal bench. Judge Leon is an appointee of George W. Bush. The case is also significant because it emanates from the District Court for the District of Columbia. As we have all learned during the recent flap over Senate Republican scrutiny of Obama appointees, that appellate division is second in importance only to the U. S. Supreme Court.
After spending the first 45, or so, pages of the opinion on the procedural matters, standing matters, and distinguishing 2013 cell phone use from the 1979 home phone use in the Smith case*, Judge Leon finds that there is an expectation of privacy in the metadata collected by the NSA and its use. He also finds that the program constitutes a Fourth Amendment search, and that the search is not within the parameters of the Fourth Amendment or within any of the exceptions to the Fourth Amendment.
About a third of the way into the opinion, Judge Leon describes how broad the reach of the NSA use of metadata can become. He describes a “seed” investigation, twice removed, if the metadata is to be reviewed. If the “seed” has contacted just 100 phone numbers over five years, the collection period, it then proceeds to the first removed. If each of first removed also contacted 100 phone numbers over five years, that’s 10,000 (100 x 100)phone numbers involved. At the twice removed level, if each of those contacted 100 phone numbers during the five year period that can be searched per NSA protocol, that’s 10,000 times 100, or 1,000,000 phone numbers being accessed under the program. The seed, twice removed, technique was admitted to by the government during the hearing process.
The Judge also found that the NSA rationale of a need for rapid analysis was not supported by the facts. The NSA was unable to point to a single case where the telephony metadata collection program provided the rapid access information that NSA claims. In fact, the metadata program was largely used as a backup program including after arrest of a suspect, and the program never prevented a terrorist action during the six years in which it has been in effect.
The Order of the Court would stop the NSA from continuing the program and require the NSA to destroy all currently stored records. Because of the implications to national security, and because other federal district courts have come to differing conclusions, Judge Leon has stayed enforcement of his injunctive order to allow the government to appeal.
* Smith v. Maryland, 442 US 735 (1979) has been used by the government and supporters of the NSA program to justify the program constitutionally. Smith involved the placement of a “pen register” on a single phone line for 13 days to determine if the specific user was likely the source of harassing phone calls to a particular number. Judge Leon found the NSA program to be both quantitatively and qualitatively distinguishable in comparing the limited nature of the Smith case to the ubiquitous collection of essentially all cell phone metadata.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.