Judge: NSA’s collecting of phone records is probably unconstitutional

By Ellen Nakashima and Ann E. Marimow

A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional. U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.

Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic 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,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful. A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said. The challenge to the NSA’s once-classified collection of phone records is one of a series of cases filed in federal court since the program’s existence was revealed in June by former NSA contractor Edward Snowden. Snowden praised the ruling in a statement made to journalist Glenn Greenwald, who received NSA documents from Snowden and first reported on the program’s existence.

“I acted on my belief that the NSA’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,” said Snowden, who has received temporary asylum in Russia, where he is seeking to avoid U.S. prosecution under the Espionage Act for leaking NSA documents. “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.”

The ruling also comes as Congress is debating whether to end the NSA’s “bulk” collection of phone data or endorse it in statute. The White House, U.S. officials say, supports maintaining the program. “It will be very difficult for the administration to argue that the NSA’s call-tracking program should continue when a federal judge has found it to be unconstitutional,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which has also sued the government over the program’s constitutionality. But George Washington University law professor Orin Kerr said, “It gives opponents of the NSA program more fuel to add to the fire, but its legal impact is quite limited because the case now just goes to the court of appeals.” The government has stressed that the program collects only “metadata,” such as numbers dialed and the times and lengths of calls, but no phone content or subscriber names. Officials say that only numbers linked to suspected terrorists are run against the database. Leon’s opinion countered that the program is so sweeping — the database easily contains billions of records — that it amounts to a “dragnet” that intrudes on the constitutional expectation of privacy. He dismissed the government’s claim that “special needs” requiring quick access to data that could thwart a terrorist plot make a warrant impracticable. “No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” he said. The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, involving the surveillance of a criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information. A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling. But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago, that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.” Kerr said Leon is wrong to suggest that Smith no longer applies. That decision, he said, draws a clear distinction between the collection of data on numbers dialed and on call content. The metadata information the government is gathering today, Kerr said, is the same type of information the court said that law enforcement could collect more than 30 years ago. “The opinion is more valid now than it was,” Kerr said, adding that “it’s up to the Supreme Court to overturn its decision, not trial judges.” Leon, who was nominated by President George W. Bush and appointed to the bench in 2002, said the government has played down the program’s invasiveness. The “almost-Orwellian technology” that allows the government to collect, store and analyze phone metadata is “unlike anything that could have been conceived in 1979” and, “at best, the stuff of science fiction,” he said. Klayman, founder of the public interest group Freedom Watch, called Leon’s ruling “courageous.”

“This is a warning to both parties that they'd better start observing the rule of law and protecting the American people or there will be severe consequences,” he said.

Meanwhile, Verizon Communications, named as a defendant, filed a motion Monday asking to be dismissed from the case. The request was based in part on a certification also filed Monday by the Justice Department that the company has immunity against lawsuits since it was compelled by a court order to comply with the government’s request for data. That immunity was authorized under a 2008 law known as the FISA Amendments Act. Leon rejected the government’s argument that Klayman and a co-plaintiff — the father of an NSA cryptologist killed in Afghanistan in 2011 — lacked standing to bring the suit because they were customers of Verizon Communications subsidiary Verizon Wireless, which has not been publicly revealed as taking part in the program. “The government,” he said, says it has created a “comprehensive” database — “in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States.” Yet, at the same time, he wrote, the government asserts that the plaintiffs lack standing “based on the theoretical possibility” that the NSA has not collected Verizon’s records. “Candor of this type defies common sense and does not exactly inspire confidence!” he wrote. To draw an analogy, he wrote, omitting Verizon Wireless, AT&T or Sprint “would be like omitting John, Paul and George” and building a “Ringo-only database.”