NSA Ordered to Stop Collecting, Querying Plaintiffs’ Phone Records

In his ruling, Judge Richard Leon of the U.S. District Court of the District of Columbia doubled down on his assertion that the National Security Agency (NSA) program “likely violates the Construction” and warned that “the loss of constitutional freedoms for even one day is a significant harm”. Under the new USA Freedom Act, records collection is scheduled to shift to private telephone companies by November 29, at which point the government must obtain court approval to query information.

NSA has been under harsh criticism after its former contractor, Edward Snowden, released documents showing the agency has been spying both on Americans and nationals, including leaders, of other countries.

The government hid behind a veil of secrecy in order to conduct the “likely unlawful” activity, Leon found. “To them, it is pure “conjecture” that “records of Plaintiffs” calls have been” or “will be” reviewed “during the remaining two months of the Section 215 program, ‘” he wrote.

As such, the decision “is perhaps the last chapter in the judiciary’s evaluation of this particular program’s compatibility with the Constitution”, he wrote.

Leon noted the government’s position: that “the immediate cessation of collection of or analytic access to metadata associated with plaintiffs’ telephone numbers … would require the NSA to terminate the program altogether”. The cellphone service is known to have been providing data to the NSA under the phone-snooping program. Other plaintiffs Larry Klayman, and Charles and Mary Ann odd, used Verizon Wireless and the judge concluded that they had been unable to prove that their phone records were collected.

Like the program Snowden disclosed, the Fourth Amendment standard of probable cause does not apply to the USA Freedom Act.

In part, he tosses out the usual reliance on Smith v. Maryland by the government, which says that if you give data over to a third party, you no longer have any privacy rights over it (the so-called “third party doctrine”). “For reasons unknown to me, it did not”. It’s a definitive legal victory for privacy advocates, albeit one that won’t have much direct effect on the program. “It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry”, he wrote.

Under the NSA program, secretly initiated in 2001 under executive power and approved by the Foreign Intelligence Surveillance Court in 2006, the agency gathered millions of Americans’ phone records daily in an effort to detect terrorist plots. Please! I recognize that my duty to evaluate the efficacy of this Program is “not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger.”…

Of course Leon’s opinion – which itself is likely to be challenged – can only have a very limited impact at this stage, given the other court cases and the ending of the current program. The ruling is significant anyway, however, because it’s so rare that a judge ever enjoins the NSA from spying.

Leon’s order would force the NSA to stop spying on Little and his firm three weeks early – and maybe everyone else, too.