US Judge Whacks At NSA: Pandemic Phone Spying on Americans ‘Almost Certainly’ Violates Constitution

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It finally happened: a federal judge ruled that the NSA’s ravenous “metadata” collection of telephone calls made in, to, or from the US in order to prevent terrorist attacks violated the Fourth Amendment ban on unreasonable searches and seizures.

And worse, all that spying didn’t even work, lamented US District Judge Richard Leon.

The Department of Justice wasn’t able to “cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature,” the judge, a George W. Bush appointee, wrote in his 68-page ruling (PDF). So he was left with “significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

And even if it worked….

“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 it and analyzing it without judicial approval,” he wrote.

The lawsuit had been filed in June by Larry Klayman, a conservative activist and lawyer, claiming that the spying dragnet, which had caught his metadata through his Verizon account, violated his Fourth Amendment right against unreasonable searches.

The judge’s preliminary injunction would bar the NSA from collecting metadata. But in a step backwards, the judge stayed his own order to allow the government to appeal the ruling while clinging to the status quo. So nothing will change until further notice. But Politico noted:

Similar lawsuits challenging the program are pending in at least three other federal courts around the country. In addition, criminal defendants are beginning to challenge the program after the Justice Department disclosed it had played a role in investigating their cases.

So maybe something will stick.

The preliminary injunction wouldn’t requite Leon “to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail,” Politico explained.

Ineffectual perhaps, but it was the first real setback for the NSA’s surveillance dragnet after numerous judges on the Foreign Intelligence Surveillance Court had approved it, and after at least one judge had found it constitutional in a criminal case. They’d referenced a 1979 Supreme Court ruling, Smith v. Maryland, which found that police didn’t need a search warrant to record the numbers dialed on a particular phone line.

But that precedent no longer applied to the NSA’s metadata collection program which is far more sophisticated than just recording numbers, the judge wrote. “The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” Leon wrote. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

So, according to the judge, the vast and indiscriminate searches of Americans’ phone metadata likely violated the Fourth Amendment – not only because of privacy issues, but also, and ironically, because they didn’t even fulfill their mission, preventing terrorism.

“We are reviewing the court’s decision,” said Department of Justice spokesman Andrew Ames.

Sen. Mark Udall (D-Colo.), in a statement, added what appears to be a novel twist: “We can protect our national security without trampling our constitutional liberties.”

There has already been costly blowback for US tech companies that have been working hand-in-glove with the NSA to build that seamless, borderless, indiscriminate spy dragnet: plunging revenues in China, Russia, and other countries. Now add an all-American cost: class-action lawsuits. Read…. Unleash the lawyers! Mounting Costs Of NSA Scandal To Bleed US Tech For Years

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