Federal Judge to NSA: What you did to Verizon Customers was Unconstitutional

(By Juan Cole)

Judge Richard Leon of the United States District Court for the District of Columbia ruled Monday that the bulk collection by the National Security Agency of cell phone data (everyone you called, when you called them and where you were when you called them) of Americans violates the Fourth Amendment to the Constitution and is “Orwellian.” I recently myself said that Some may think I am exaggerating the case, but we only have 1% of the Snowden leaks and what we already have makes Orwell’s 1984 look like a lackadaisical libertarian paradise.

Judge Leon points out that we now use our smartphones for a wide variety of personal activities in which we have the expectation of privacy, and probably we have more expectation of privacy from our phones now than we did from a pay phone in the 1980s. A brilliant point!

Leon found that the 1979 Supreme Court ruling Smith v. Maryland, which was appealed to by the Department of Justice to justify the practice was far too narrow to support NSA actions. Smith v. Maryland allowed police to collect from telephone companies lists of numbers called without a warrant for a short period of time. Leon pointed out that nowadays cell phone data includes much more than just the number you called. It also includes, for instance, your location when you made the call, functioning in the way GPS does. For the NSA perpetually to collect intrusive data without a warrant on millions of persons not suspected of wrongdoing is a very different proposition than the 1979 case.

He said, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.

Crucial to Leon’s ruling was that he recognized the standing of the plaintiffs, Larry Klayman and Charles Strange, to sue to stop the government from monitoring them. Several previous suits, including one by the ACLU and prominent authors, had failed because the plaintiffs could offer no documentary proof beyond suspicion that they were being monitored.

Klayman (of Freedom Watch) and Strange (whose son was a cryptographer killed in Afghanistan) obviously did have standing, however (as any Verizon customer did), since Edward Snowden leaked to the Guardian’s Glenn Greenwald last summer that the NSA regularly demands that US telephone companies turn over all users’ personal information (who they called, when, and where they were). Leon cites Greenwald’s article in recognizing the plaintiffs’ standing, as well as subsequent government confirmations of the information in the leak.

plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five).

Judge Leon wrote that the Supreme Court’s Clapper decision last spring, which disputed the notion that citizens could be presumed to be under surveillance, was delivered before the Snowden revelations. He said,

“Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five).

Without Snowden’s leaks, no legal challenge could have been brought to the NSA practices. He released a statement to the New York Times claiming vindication:

“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 . . . Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The NSA and other US security organs have assiduously avoided allowing their procedures to come before courts that might rule on their legality or constitutionality.

[pdf] Judge Richard Leon’s ruling is here

The judge was considering whether the NSA surveillance ran up against the 4th Amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

He writes,

“Because the Government can use daily metadata collection to engage in ‘repetitive, surreptitious surveillance of a citizen’s private goings on,’ the NSA database ‘ implicates the Fourth Amendment each time a government official monitors it.’

He goes on,

“The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes and investigates that data without prior judicial approval of the investigative targets. If they do– and a Fourth Amendment search has thus occurred– then the next step of the analysis will be to determine whether such a search is ‘reasonable.'”

Leon cited United States v. Jones (2012), in which five justices found that police erred in putting a GPS tracker on a suspect’s automobile and tracking him for a month without a warrant, since that tracking violated his expectation of privacy. The Supreme Court in that ruling decided that there is a difference between short term and long term tracking, with the latter intruding on privacy because it allows a law enforcement to establish a detailed picture of private behavior. That is very different from watching someone drive down a public thoroughfare once or twice.

I made the same argument in this blog posting earlier in December.

Judge Leon found that the NSA when it demands our telephone metadata is conducting a search, and that it is most likely an unreasonable search of our personal effects according to the Fourth Amendment, since there is no specific suspicion of wrongdoing by any individual whose records are demanded.

That’s what I’ve been saying since the Snowden leaks began last June. Judge Leon is My Hero.

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Related video:

Reuters reports on Leon’s ruling :

40 Responses

  1. Judge Leon, for all his strong language against the NSA metadata collection program, pulled a couple of important punches in his decision. First, Judge Leon’s statements lead to a conclusion that the program is probably (but not conclusively) illegal and in violation of the Fourth Amendment. The judge’s opinion states that Klayman’s suit has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches. A “substantial likelihood of success” is a far cry from a categorical finding of illegality.

    Second, although Judge Leon granted the request for an injunction that blocks the collection of data for Klayman and a co-plaintiff, he stayed action on his ruling pending a US Government appeal. In doing so, he recognized, as he wrote, “the significant national security interests at stake in this case and the novelty of the constitutional issues.”

    There are different opinions regarding whether or not the 1979 Supreme Court case “Smith vs. Maryland” provides legal precedent and justification for NSA’s program. Judge Leon claims it does not. On the other hand, Orin Kerr, a George Washington University law professor, said that Judge Leon is wrong to suggest that “Smith” does not apply. Kerr maintains that “Smith” draws a clear distinction between the collection of data on numbers dialed and on call content. Kerr said that the metadata information NSA is gathering today is the same type of information the court said law enforcement could collect in 1979, adding, “It’s up to the Supreme Court to reverse its decision, not trial judges.”

    Regardless of how the appellate court rules, this case (or one like it) will no doubt go before the Supreme Court. My guess is the Government’s case for NSA’s collection of metadata ultimately will be upheld.

    • Bill, the judge wasn’t pulling punches by using the language “substantial likelihood of success.” This was a hearing for a preliminary injunction, to enjoin the NSA’s gathering program while the underlying case against it is being litigated. “A substantial likelihood of success” is the legal standard he was being asked to apply.

      “Second, although Judge Leon granted the request for an injunction that blocks the collection of data for Klayman and a co-plaintiff, he stayed action on his ruling pending a US Government appeal.”

      That is a near-universal step in the granting of an injunction against an ongoing government action. There would have to be some truly extraordinary circumstances – like, somebody is liable to get killed – for the trial court judge not to do so. If he didn’t, then the appellate court would almost certainly do it for him.

      • I used the term “pulling punches” metaphorically, Joe. I feared that some might read his decision as categorical.

        • Your point was quite clear. It was also wrong. The judge didn’t pull punches or go easy on the NSA. The actions you cited as evidence don’t actually demonstrate what you thought they did.

        • My point obviously was not clear to you, Joe. You may think you know what I thought regarding the Judge’s actions, but that simply demonstrates the pitfalls of playing amateur psychologist.

  2. No doubt that Judge Leon now finds himself of that list of 60 or so terrorism suspects under surveillance. He certainly has Gen Alexander terrorized!

    • Awesome article.

      The genesis of the Bush family’s ascendancy to the presidency was Jimmy Carter’s gutting of the Central Intelligence Agency by laying off 700 career CIA personnel and appointing outsider Stansfield Turner as Director of Intelligence in 1977.

      Ted Shackley, former CIA Associate Deputy Director of Operations, was one of those who left the CIA and commenced the October Surprise efforts. He reportedly met with George H.W. Bush for breakfast every Saturday for strategy discussions during Bush’s presidential run in 1980.

      • Having met Stansfield Turner and a friend who knew him well, I’m more inclined to see this as Carter cleaning up the CIA’s act. 700 less people in the CIA?. How does that work out percentage-wise? The people equivalent of chump change?

        • It was Carter bringing in an outsider – Admiral Turner.

          Carter had funding cut and many career intelligence officers were cut. Shackley expected to promoted to Director of Intelligence but got forced out. The CIA’s power structure was altered dramatically under Carter – just as it had under JFK.

  3. Just looked up Total Information Awareness and IAO. It seems the Defense appropriation of 2004 directed the office to be closed immediately. It seems to me that NSA may be being used to circumvent that directive. I anyone addressing the NSA appropriation from this angle?

  4. A good opinion but do not be surprised if the U.S. Court of Appeals of the D.C. Circuit eventually reverses as the Sixth Circuit did Judge Anna Diggs-Taylor’s opinion from the Eastern District of Michigan when she held that the NSA’s ECHELON program was violative of the Fourth Amendment’s Warrant Clause.

    The federal judiciary often is drawn from career government attorneys or those with connections to the intelligence community. Chief Justice William Rehnquist’s wife was a CIA employee and Associate Justice Lewis Powell was an army intelligence officer.

  5. Perhaps it is now time to refer to the generals and ex-generals running the national “security” system as a junta.

  6. Leon pointed out that nowadays cell phone data includes much more than just the number you called. It also includes, for instance, your location when you made the call, functioning in the way GPS does. For the NSA perpetually to collect intrusive data without a warrant on millions of persons not suspected of wrongdoing is a very different proposition than the 1979 case.

    This is a legitimate point, but a bad example to support it. In 1979, the land-line telephone number information also provided your location – the house/apartment/office that had that phone number.

    Still, the point holds. Not only is there much more information being provided now, but computing technology allows the government to do a lot more with that information.

    • Now, as in 1979, the US Government can access the content of the calls if it wants to. Nothing has changed with regard to the potential for abuse. But, frankly, every government program that involves US citizens has the potential for abuse. What has to be weighed is the potential for abuse against the stated purpose of metadata collection, i.e., looking through the haystack for the US needle that is being threaded by, say, a terrorist in Yemen.

      It all comes down to, do you trust the government or not? A majority of those on the Left are united with the Tea Party Libertarian Right in not trusting the government (strange bedfellows!). They do not think the stated purpose of uncovering potential plots against the US justifies the perceived loss of privacy. Others (and I include myself here) recognize a certain loss of privacy and the potential for abuse, but trust the government is using the metadata collection for the stated purpose.

      This is a debate that periodically occurs throughout American history. From the very beginning there has been the debate over the Hamiltonian vs. Jeffersonian view of the role of government in the United States.

  7. ” Others (and I include myself here) recognize a certain loss of privacy and the potential for abuse, but trust the government is using the metadata collection for the stated purpose.”

    Fifty-some years ago that astute observer of politics, I. F. “Izzy” Stone, said that all governments lie and all governments since have indicated that is probably an immutable law. And you trust the government? How about some rogue who may not be as altruistic as Edward Snowden and who decides to use information he has access to and decides to blackmail someone. There are too many risks to this accumulation of data to trust anyone with access to it.

    • “How about some rogue who may not be as altruistic as Edward Snowden and who decides to use information he has access to and decides to blackmail someone.”

      The risible statement about Snowden’s “altruism” aside, I doubt that an NSA employee who decided to blackmail someone would be able to keep it under cover very long. And when he was exposed, I’m sure he would be dealt with appropriately according to NSA and US government procedures in place. Just as any other inappropriate and illegal workplace behavior would be handled.

      • You are certainly correct that if a low level NSA employee attempted to blackmail a significant political figure he would surely get caught. He would be playing out of his league. Blackmailing an ex-girlfriend, not so much.

        However a Dick Cheney doing the same thing would be normal and expected. When the boss does it, it must be OK. Right?

        This information collection, tailor made for blackmail, is too poisonous to have in a democracy. If we must engage in such activity it must be carefully watched and restricted and most of all small scale. After all you cannot predict when the next Dick Cheney might come along!

      • “The risible statement about Snowden’s “altruism” aside,…”

        Snowden’s action has obviously been a divisive issue. I prefer the side that I’m on with “Former whistleblowers: open letter to intelligence employees after Snowden: Blowing the whistle on powerful factions is not a fun thing to do, but it is the last avenue for truth, balanced debate and democracy by • Thomas Drake, Daniel Ellsberg, Katharine Gun, Peter Kofod, Ray McGovern, Jesselyn Radack, Coleen Rowley – link to theguardian.com

        and

        “Snowden honored by ex-Intel officials: Sam Adams Associates for Integrity in Intelligence, an organization of former national security officials, has honored NSA whistleblower Edward Snowden, praising his decision to reveal the extent of U.S. government electronic surveillance of people in the United States and around the world.” – link to consortiumnews.com

        Can you name anyone on your side who is not a lapdog for the military-industrial-security junta?

        • “Can you name anyone on your side who is not a lapdog for the military-industrial-security junta?”

          I make up my own mind on the issues of the day, including Snowden’s divulging highly classified information. I do not need to line up supporters of “my” side of the issue against those who support “your” side of the issue. (Shades of “My old man can whip your old man.”) It is childish and doesn’t add anything to the dialogue.

        • We were talking about divisiveness that created two sides. Not what your old man did or some other meretricious nonsense.

      • “The risible statement about Snowden’s “altruism” aside,…”

        A recent Quinnipac poll has Americans in favor of Snowden by a margin of 55 to 34 – link to quinnipiac.edu

        Internationally, polls have indicated a higher favorability rating for Snowden.

    • “Fifty-some years ago that astute observer of politics, I. F. “Izzy” Stone, said that all governments lie and all governments since have indicated that is probably an immutable law. And you trust the government?”

      Governments do occasionally lie, but it is not an immutable law that governments, particularly the US Government, lie all the time. Often, as in the case of Nixon and Watergate, they are called on it and pay the consequences. If you believe that governments always lie and cannot on any issue be trusted, what is your answer? Anarchism?

      Regarding I.F. “Izzy” Stone, I was a great admirer of Stone and his methods, although I disagreed with most of his sweeping conclusions. I.F. Stone did not rely on only government or “insider” sources for his reporting. He made it a point of only using sources that were in the public domain, connecting the dots of various news reports, journals, and other publicly available sources, including those made available by the government.

      Stone had wide-ranging interests as well. After retiring from writing “I.F. Stone’s Weekly” Izzy returned to the University of Pennsylvania where he earned a degree in Classical Languages, concentrating on Classical Greek. He researched original sources and in 1988 published a book entitled, “The Trial of Socrates.”

      In short, Stone’s reporting was usually spot-on, but his conclusions were always filtered through his life-long Leftist lens. Nevertheless, I always thought an evening with Izzy over a good meal and a bottle of wine would be both interesting and great fun.

      • ” If you believe that governments always lie and cannot on any issue be trusted, what is your answer? Anarchism?”

        If we were to go through history and found that every government told just one lie (shouldn’t be hard to do) then that would support the claim that all governments lie, but it wouldn’t support a claim that all governments lie all the time. So there is no argument for anarchy there.

    • “Fifty-some years ago that astute observer of politics, I. F. “Izzy” Stone, said that all governments lie and all governments since have indicated that is probably an immutable law.”

      “If you believe the government, ‘You’re stupid: Americans are taught the myth that their democracy is safeguarded by an independent press. But the government and other powerful entities have long mastered the art of manipulating the major media, even to the point of bluntly telling reporters the facts of life,” as Jon Schwarz recalls. – link to consortiumnews.com

  8. A question now may be how many Verizon customers may have invasion of privacy claims against the responsible parties for the unconstitutional conduct.

    Several Metro Detroit attorneys in the 1960s and 70s filed suit after they discovered that their telecommunications systems were being monitored.

    Jimmy Hoffa’s defense counsel, William Bufalino, sued Michigan Bell Telephone Company and the Detroit Police Department for placing electronic eavesdropping devices on his law firm’s phones.

    Abdeen Jabara, appeals counsel to Sirhan Sirhan, sued, via the ACLU, the FBI in 1972 for illicit surveillance of overseas telecommunications involving attorney-client matters, although the NSA and CIA were also involved in some of the questionable government conduct. The varying levels of surveillance of Jabara actually began in 1967 – one year before Sirhan’s arrest – and the ACLU suit filed several months after Jabara persuaded the California Supreme Court to vacate Sirhan’s death sentence – that ACLU case was eventually settled in the 1980s after the Justice Department tried unsuccesfully for years to obtain dismissal of claims including violations of the Freedom of Information Act and Federal Privacy Act.

    Both cases had political overtones. Hoffa and the Teamsters had close ties to the GOP and Richard Nixon and the “Get Hoffa Squad” of the Justice Department was headed by Kennedy ally Walter Sheridan – a former NSA counterintelligence officer. Jabara was a vocal opponent of U.S. foreign aid to Israel – and remains so to this day.

    • That paragon of liberal virtue, Robert F. Kennedy, was behind much of the vendetta against Jimmy Hoffa, including the wiretaps. A lot of people forget (or don’t know) that early on Bobby Kennedy worked for Senator Joe McCarthy as well.

  9. Others (and I include myself here) recognize a certain loss of privacy and the potential for abuse, but trust the government is using the metadata collection for the stated purpose.

    Why?

    Do you work for the government?

    What has been your experience that leads you to believe that the state is anything other than the looter of the people?

    I’d seriously like to know.

    • There has already been evidence that the NSA illegally leaked intercepted messages to the D.E.A. to advance that agency’s interests.

      There have also been allegations that some NSA workers misappropriated confidential data for personal purposes.

      The historical precedent of J. Edgar Hoover’s FBI and his “Secret and Confidential” files gives Americans reason to believe that there are segments of our U.S. intelligence community who may exploit collected data in an illegal or inappropriate manner.

      • “The historical precedent of J. Edgar Hoover’s FBI and his “Secret and Confidential” files gives Americans reason to believe that there are segments of our U.S. intelligence community who may exploit collected data in an illegal or inappropriate manner.”

        Any government program or activity has the potential for abuse. that it occasionally occurs is recognized by everyone, but that does not mean that it always and in every instance of government activity–be it intelligence or otherwise–occurs. And when it has occurred, it has usually been corrected.

    • “What has been your experience that leads you to believe that the state is anything other than the looter of the people?”

      What has been your experience that the state is nothing but the “looter of the people”? Evidence for such an all-encompassing statement, please.

      • “What has been your experience that the state is nothing but the “looter of the people”? ”

        A person would need to be exceptionally radical to claim “nothing but”; nevertheless, the present administration and some members of Congress appear to have set themselves the task of transferring a great deal of wealth from “the people” to corporate entities. Obamacare looks like a candidate forcing people to pay insurance corporations for policies of dubious value. Then there are those who would like to transfer control of the Social Security trust fund to Wall Street. We might usefully add the transfer of tax revenues to the military-industrial-security junta.

  10. I don’t know when you last read 1984 Professor, but room 101 was rather more dire than phone tapping !! You are of course right, the scale of spying by the authorities is way beyond the scope of anything imagine by Orwell in his 1984 book.

  11. “Federal Judge to NSA: What you did to Verizon Customers was Unconstitutional”

    Ironically, it appears most, if not all, of Verizon’s customers either don’t know or don’t care. The same seems to go for AT&T.

    • “Ironically, it appears most, if not all, of Verizon’s customers either don’t know or don’t care. The same seems to go for AT&T.”

      As usual, you present the alternatives that fit your Narrative. There is another alternative: It just might be possible that the majority of Verizon and AT&T’s customers know and care, and that having weighed the potential for abuse against the purpose of the metadata collection (potentially to thwart terrorist attempts against the US) they decided the balance favors the NSA program. You make a mistake in thinking that just because they don’t agree with you they “don’t know or don’t care.”

      • “As usual, you present the alternatives that fit your Narrative. There is another alternative: It just might be possible that the majority of Verizon and AT&T’s customers know and care, …”

        Given how ill-informed and gullible the mass of people can be (estimated 70% fell for the Bush lies for war on Iraq) I’ll stick to my concept about Verizon and AT&T customers.

  12. This will no doubt come as a surprise to many. The new nominee to head the CIA disagrees with Judge Leon: “Feinstein got Krass to say she disagreed with a federal judge’s opinion on Monday that the NSA’s bulk surveillance of US phone data was likely unconstitutional. Krass, who would have a limited ability to oversee that program at CIA but likely has insight into it through her Justice Department role, disputed Judge Richard Leon’s assessment that such constitutional protections surround that data.” – link to theguardian.com

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