U.S. District Court Judge Richard J. Leon has held that the program is unconstitutional. This op-ed discusses his opinion. Judge William Pauley has held that the program is constitutional. My next op-ed will discuss his opinion.
On Dec. 16, Judge Leon issued his opinion in Klayman v. Obama. In that case, the plaintiffs challenged the constitutionality of the NSA's wholesale collection of phone record metadata of all U.S. citizens. Judge Leon held that what the NSA was doing was an unconstitutional violation of the plaintiffs' Fourth Amendment rights against illegal search and seizure.
The Fourth Amendment provides: "The right of the people to be secure in their ... effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath ... and particularly describing the place to be searched, and the persons or things to be seized."
Judge Leon began his opinion by alluding to the background of the case. "On June 5, 2013, the British newspaper The Guardian reported the first of several leaks of classified material from Edward Snowden, which have revealed -- and continue to reveal -- multiple U.S. government intelligence collection and surveillance programs. That Guardian report disclosed a Foreign Intelligence Surveillance Court (FISC) order, dated April 25, 2013, compelled Verizon ... to produce to the NSA on 'an ongoing daily basis ... all ... metadata created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls.'"
Judge Leon noted The Guardian further stated that this order "showed that under the Obama administration, the communication records of millions of U.S. citizens are being collected indiscriminately and in bulk -- regardless of whether they are suspected of any wrongdoing."
Metadata includes information as to "what phone numbers were used to make and receive calls, when the calls took place, and how long the calls lasted."
Judge Leon first found that that metadata collection was a search. "Having found that a search occurred in this case, I next must examine the totality of the circumstances to determine whether the search is reasonable within the meaning of the Fourth Amendment."
Judge Leon then noted "as a general matter, warrantless searches are per se unreasonable under the Fourth Amendment."
For that reason, he next looked to see if the NSA search might fall within a recognized exception.
"The Supreme Court has recognized only a few specifically established and well-delineated exceptions to that general rule ... Even where the government claims 'special needs,' as it does in this case, a warrantless search is generally unreasonable unless based on some quantum of individualized suspicion."
The judge then summarized the essence of the government's position:
"To my knowledge, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-FISC judge to sanction such a dragnet."
The government's position shocked Judge Leon.
"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. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment. ... James Madison ... would be aghast."
The judge then distinguished his holding from a U.S. Supreme Court precedent, Smith v. Maryland (1979), relied upon by the government.
"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 (circumstances) considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer ... is now.
"The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made (for a period of two weeks from his home) after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction."
Judge Leon's prime concern in refusing to carve out a Fourth Amendment exception appears to be that the same metadata that today can be used to ferret out terrorists, tomorrow can be misused by a dictator to ferret out all opposition.
Posted Online: Jan. 11, 2014, 9:40 am - Quad-Cities Online
by John Donald O'Shea
Copyright 2014
John Donald O'Shea
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