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Judge's ruling against NSA: Next step federal appeal and then the Supreme Court?

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Judge Leon’s ruling on Monday that collection of Americans’ phone calls by the NSA is probably unconstitutional and his immediate stay of his order allows for that anticipated trip upstairs, according to the N.Y. Times today.

The ruling will mostly face the Supreme Court as Department of Justice reviews with a magnifying glass the ruling and the available arguments for an appeal.

Judge Leon in his sixty-eight page ruling made it clear that he could not find an incident in which massive collection of phone data prevented a terrorist attack since 9/11.

What does his stay of ruling mean for both sides of the case?

First, it allows the NSA to have legal authority to continue its actions at this time based on Section 215 of the Patriot Act, to collect phone metadata, which includes numbers called and length of calls.

The ruling provides the first indication yet that the courts could put some limits on surveillance that the political branches of government, Congress and successive administrations under Republican and Democratic presidents, have not done.

If the ruling stands, it also means that more Americans could sue to have their data removed from the NSA's data collection programs. The ACLU has a case before a New York federal court.

Second, in Monday's ruling, U.S. District Judge Richard Leon said the program doesn't appear useful at all, adding that government had not cited "a single instance" in which analysis of the NSA phone data program stopped an imminent terror attack.

NSA Director NSA Director Keith Alexander has said the program in tandem with other efforts has thwarted about 50 terrorist incidents while supporters in Congress estimate a probable dozen events of prevention.

A third issue presents how this ruling affects other rulings? This is the first time a ruling on the collection of data has been before a Judge who is not on the Foreign Intelligence Surveillance Court which has ruled 35 times that the NSA's phone data collection is legal under Section 215 of the Patriot Act, the government says.

Previous rulings from the Foreign Intelligence Surveillance Court rests also in part on a 1979 Supreme Court ruling, called Smith v Maryland, that phone subscriber rights to privacy didn't include information held by the phone company, such as raw data on phone calls.

It has been argued that today’s technology was not available and could not be known at the time of the 1979 Supreme Court ruling.

What is Edward Snowden’s status and next step? According to Attorney General Eric Holder, in an interview with CNN, said of Snowden: ‘I think that he has clearly broken the law and harmed the nation that he claims to have loved.’

Edward Snowden released late Monday an open letter to Brazil in his attempt to gain asylum in Brazil.

Snowden also has agreed to testify, via teleconference, before a civil liberties committee of the European Parliament, sources in the Parliament say. Some within the Parliament opposed the invitation, but the majority supported the idea, the sources said. The testimony may take place in January, reports CNN.

The next step for Congress is to review the data collection process and determine if Congress should provide changes in its approval and funding to the agency for data collection.

The reality of Monday’s decision is as Snowden wrote in his open letter on Monday that there will be more cases such as this one.

Barry Friedman, a law professor at New York University who is at work on a book on the Fourth Amendment, said that only Judge Leon’s work was worthy of a federal judge in comparison to the Foreign Intelligence Surveillance Court:

‘Judge Leon’s reads as though there is a living, breathing, thinking person behind it,’ he said. ‘Right or wrong ultimately, it is full of detail, real-world fact and serious consideration. The FISA court opinions are lifeless. They read like a machine wrote them.’



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