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NSA Phone Data Collection is Unconstitutional, Says Federal Judge

NSA Phone Data Collection is Unconstitutional, Says Federal Judge

Written by Judd Legum

A federal judge has ruled that the “wholesale collection of the phone record metadata” of all U.S. citizens — a program exposed by former NSA contractor Edward Snowden — likely violates the 4th Amendment and is unconstitutional.

In the decision, Judge Leon rules that the plaintiffs challenging the bulk collection of U.S. phone records, including legal activist and Judicial Watch founder Larry Klayman, have “demonstrated a substantial likelihood of succession the merits of their Fourth Amendment claims, and that they will suffer irreparable harm absent preliminary injunctive relief.” The decision describes the technology used by the Government as “almost-Orwellian.”

Judge Leon explains “[P]laintiff’s have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years.” Judge Leon notes that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” He notes that the “program infringes of ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.” Judge Leon concludes that “the author of our constitution, James Madison…would be aghast.”

The decision was stayed by Judge Leon pending appeal and, therefore, has no immediate effect.

UPDATE
Sen. Mark Udall, a member of the Intelligence Committee, released a statement arguing that the decision underscore the urgent need to reform the NSA and “rein in the dragnet collection of phone records.”

UPDATE
Edward Snowden released the following statement via Glenn Greenwald: “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.”

This post was originally published in ThinkProgress

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50 comments

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8:43PM PST on Jan 18, 2014

@ John C:

I think you'll find this interesting.

What Franklin really said -- or wrote, actually; it was part of a letter -- was, "“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety."

In an article republished on lawfareblog.com, Benjamin Wittes writes:

"...the “essential liberty” to which Franklin referred was thus not what we would think of today as civil liberties but, rather, the right of self-governance of a legislature in the interests of collective security."

And:

"He was describing, rather, effective self-government in the service of security as the very liberty it would be contemptible to trade."

It's an interesting read. You can find it at http://www.lawfareblog.com/2011/07/what-ben-franklin-really-said/

7:02AM PST on Dec 21, 2013

Thank you ThinkProgress, for Sharing this!

6:52AM PST on Dec 20, 2013

Marc P. - the phone companies already store that information, and the way the system is supposed to work is that any agency, be it the government, police, attorney, *anyone*, has to get a subpoena showing probable cause.

Note that I said that that's how the system is *supposed to* work, as opposed to how it currently *is* working, which is the NSA thumbing their nose at the system and saying "we don't need no stinking subpoena, *or* no stinking probable cause".

John C./Houston, TX - I suggest you read the paraphrased quote from Benjamin Franklin that Freddy R. put in his comment. Here is the exact quote: "They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." I will therefore assume you deserve neither, since you seem quite willing to give up your right to privacy, an essential Liberty, surely, as granted by the 4th Amendment.

3:58AM PST on Dec 20, 2013

Anyone with an IQ over 70 knows that this data collection is unconstitutional it is merely headline- making in that someone had the guts to stand up and say it.

Think we need a new system of telling who the bad guy really is.

10:34PM PST on Dec 19, 2013

They wont hear you....La La La La La La La La

8:38PM PST on Dec 19, 2013

This is all well and good but NSA will do exactly what they want - constitutional or not and Congress will continue to back them with all their political BS.

6:53PM PST on Dec 19, 2013

You can bet the Supreme Court will once again turn its back on the people and kill that ruling. have you heard the new plan? To make all this data collection "Legal", that data will be stored in the databases of a Private Company. (Like your phone carrier.) Then if the NSA wants to retrieve it they can apply for a warrant. About the only scenario worse than the government doing the spying that I can think of is having PRIVATE industry do it!

2:49PM PST on Dec 19, 2013

What a long trip and it still isn't over.

We started it all and we have to stop it. That is 'We the People' have to stop this insane lack of respect of the general public.

2:19PM PST on Dec 19, 2013

How much money is being spent on this? Wow! What a waste!

1:34PM PST on Dec 19, 2013

now to get the rest of Congress to recognize and act to reign in the NSA

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