Privacy Advisor

Federal Judge Rules NSA Phone Metadata Collection Program Likely Unconstitutional

The first significant legal roadblock to the NSA’s data collection programs prompts the question: Does this mean Edward Snowden really is a whistleblower?

December 17, 2013

By Jedidiah Bracy, CIPP/US, CIPP/E

A federal judge has ruled that the U.S. National Security Agency’s (NSA) phone metadata collection program is likely unconstitutional, Politico reports. U.S. District Court Judge Richard Leon, an appointee of former President George W. Bush, said the program appears to violate the Fourth Amendment, and the Justice Department has not successfully demonstrated that the program has thwarted terrorism.

In the 68-page opinion, Leon wrote, “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.” Leon later added, “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The temporary injunction, which would prevent the NSA from continuing the collection program, has been stayed pending appeal.

In defending the surveillance program, the U.S. government has relied on a 1979 Supreme Court decision, Smith v. Maryland, in which the top court upheld the warrantless capture by law enforcement of phone numbers dialed by a suspect because he did not have a reasonable expectation of privacy when dialing the numbers. Leon argued, in his decision, that the Supreme Court in 1979 would not “have ever imagined how the citizens of 2013 would interact with their phones.”

Leon continued, “The ubiquity of phone use 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 … I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

The ruling brought privacy to the headlines across the media spectrum Monday night and into Tuesday. On Sunday night, the NSA gave TV news magazine 60 Minutes an inside look at the agency, prompting criticism from some sources that the report was one-sided and didn’t interview Snowden or journalist Glenn Greenwald.

After the ruling on Monday, Snowden said, “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.” Also on CNN’s AC360, Greenwald said the ruling vindicated the actions of Snowden. CNN contributor Jeffrey Toobin, who will be a keynote at the IAPP Global Privacy Summit in March, disagreed. “I don’t think this vindicates him, but it certainly comes a lot closer to vindicating him than anything else has.”

Reaction to the ruling has been widespread. The Editorial Board of The New York Times wrote the ruling is a “powerful rebuke of mass surveillance.” The board opined that the ruling “is an enormous symbolic victory for opponents of the bulk-collection program and a reminder of the importance of the adversarial process.”

American Civil Liberties Union Deputy Legal Director Jameel Jaffer wrote, “We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA’s surveillance activities back in line with the Constitution.”

In the Electronic Frontier Foundation’s (EFF) Deep Links blog, the EFF’s Trevor Timm called the ruling “historic” and “an important first step in ensuring Americans’ privacy is protected in the digital age.”

George Washington University Law School Prof. Daniel Solove wrote about the ruling and the Fourth Amendment."I find much merit to the ... court's analysis," he wrote. "I have long argued that Smith was wrongly decided..."

Eugene Robinson, a columnist for The Washington Post, wrote, “If we want our privacy back, we’re going to have to fight for it.”

Finally, Stanford Center for Internet and Society Director of Civil Liberties Jennifer Granick called the ruling “tremendously important” but warns the agency, as well as the executive branch, will find “creative ways” to sidestep legislation, including the proposed USA FREEDOM Act.

Read more by Jedidiah Bracy:
Tech Biz Urging U.S. Lawmakers, Global Governments To Reform Surveillance Law
Where the FTC Has Been and Where It's Headed in 2014
White House's Wong Makes Case for Embedded Privacy Pros
Are Notice and Consent Possible with the Internet of Things?