On Dec. 16, U.S. District Judge Richard Leon of the District of Columbia ruled in the case of Klayman v. Obama that the National Security Agency's bulk collection of telephony metadata, such as records of numbers called and times of conversations, is likely to be unconstitutional on Fourth Amendment grounds.
The 68-page ruling, which can be found here, contains an injunction against the NSA's collection of metadata from the plaintiffs in the case and ordered them to destroy the records they have already collected. But Judge Leon also stayed this injunction, pending a government appeal.
“I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, who was appointed by President George W. Bush in 2002. “Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment.” He also noted that the government “does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”
“Given the limited record before me at this point in the litigation — most notably the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — 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,” Leon wrote.
“I’m extremely gratified that Judge Leon had the courage to make this ruling,” said Larry Klayman, a former Reagan administration official who heads the conservative watchdog group Freedom Watch. “He is an American hero. This is the first time in my experience that any judge has stuck his neck out, and he did what's right. Let's hope other judges will follow suit and take an example from Judge Leon, because the American people have felt defenseless.”
Andrew Ames, a Justice Department spokesman, said government lawyers were studying the decision, but he added: “We believe the program is constitutional as previous judges have found.”
“Smith v. Maryland is the law of the land,” said David Rivkin, a former White House lawyer in the George H.W. Bush administration. “It is not for a District Court judge to question the continuing validity of a Supreme Court precedent that is exactly on point.” Smith v. Maryland (1979) was a Supreme Court ruling which said that the use of a pen register, which records all telephone numbers called by a certain number, does not constitute a “search” under the Fourth Amendment.
Some previous cases have been thrown out on the grounds that plaintiffs cannot be sure that they are being spied upon, and therefore lack standing to bring a case. Judge Leon rejected such reasoning, writing, “The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim (of unlawful search and seizure), and that they will suffer irreparable harm absent…relief.”
The case is a landmark case because it is the first in which a non-FISA court judge has examined the NSA's data collection on behalf of someone who is not a criminal defendant. More cases of its kind are pending in federal courts across the nation, and it is likely that the U.S. Supreme Court will hear some of the appeals. The case is also the first successful legal challenge against the NSA programs since whistleblower Edward Snowden released classified documents on the subject in June.
“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,” claimed Snowden in a statement distributed by journalist Glenn Greenwald, who has reported on the leaks since they were made available. Snowden is living in Russia under a grant of asylum to avoid prosecution on espionage-related charges by the U.S. government.