Monday’s ruling by federal district judge Richard Leon that an NSA program to collect and store cell-phone records is probably a violation of the Fourth Amendment has been met with predictable victory dances by opponents of this program from the right and the left.
Democratic senator Ron Wyden, who has fought a losing battle in the Senate Intelligence Committee against the metadata and other NSA programs, said Judge Leon’s decision “makes clear that bulk phone-records collection is intrusive digital surveillance and not simply inoffensive data collection.”
Republican senator Rand Paul said the ruling “reminds the federal government that it is not above the law.”
Former NSA technician Edward Snowden, who violated his security oath and U.S. law by leaking thousands of pages of classified documents, said through a reporter that “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.” Glenn Greenwald, a journalist with the London Guardian
who has been publishing intelligence stolen by Snowden, claimed that the ruling vindicated the former NSA employee.
I dispute all of these statements. Despite the media’s spin to the contrary, I doubt that this ruling means the metadata program is doomed.
First of all, according to the Justice Department, the program survived 35 challenges before 15 separate judges. The point here is that the opinion is just one judge’s view. Others have looked at the relevant issues and found this program to be constitutional. Losing a single decision on a complex and controversial matter like this is not a surprise.
And while Judge Leon has a point that the metadata program touches on new legal issues raised by changing technology, his finding that the 1979 Supreme Court case Smith v. Maryland can no longer be used as the legal justification for the program is simply wrong. The Smith case found that Americans have no expectation of privacy concerning telephone metadata, and that therefore a court order is not needed to obtain such information.
The Smith ruling has been cited in several court cases related to the metadata-collection program and is still quite relevant to this case. Judge Leon may not like this decision, but to disregard it in this way is in essence to overrule the Supreme Court — and to break with the courts’ tradition of showing extreme deference to the other branches of government on matters of national security. This issue is too important to be decided by judges.
It’s worth emphasizing, as Judge Leon noted in his decision, that this is just one of several pending cases against the metadata and other NSA programs. If Judge Leon is willing to do this, it may signal that other judges will do the same. Although this decision could have been worse, we might not be so lucky next time.
Judge Leon stayed his decision until the government can appeal it. He limited his injunction to the government and did not extend it to telecom and Internet companies and their executives as the plaintiffs had requested. (The plaintiffs wanted to hold the telecoms legally liable for complying with government requests for American citizens’ phone records. After Leon’s decision, Verizon moved to dismiss claims against the company in the case.) Leon also refused to rule on the plaintiffs’ claim that the program violated the Foreign Intelligence Surveillance Act, because he agreed with the government that he lacked jurisdiction over this issue.
Despite the over-the-top language in Judge Leon’s opinion, such as his claims that the metadata program is “almost Orwellian” and that he has “little doubt that the author of our Constitution, James Madison . . . would be aghast,” the FISA court, Democratic senator Dianne Feinstein (the chairwoman of the Senate Intelligence Committee), and Representative Dutch Ruppersberger (the top Democrat on the House Intelligence Committee) beg to differ. Feinstein and Ruppersberger, liberal members of Congress, would never have gone along with — and would not continue to support — an intelligence program that posed anywhere near that much of a threat to civil liberties.
Judge Leon also wrote that he has “serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.” Bipartisan majorities on the Senate and House intelligence committees think otherwise, as do numerous intelligence officials. The Obama administration has defended the NSA program as a crucial tool against terrorism.