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NSA's Latest Threat: Constitutional Law

NSA's Latest Threat: Constitutional Law

The Obama administration is scrambling to come up with a defense for the NSA's bulk collection of cellphone data after a federal judge ruled that it likely constitutes illegal search under the Fourth Amendment. The issue may not be addressed in the current case if the decision is reversed on procedural grounds. Still, it's the first of what likely will be many legal challenges for the agency.

By Richard Adhikari
12/17/13 1:44 PM PT

A federal judge has ruled that the United States National Security Agency's collection of telephone metadata is likely a violation of the Fourth Amendment to the U.S. Constitution, adding another point of debate to this volatile issue.

U.S. District Judge Richard Leon's ruling has extra impact because he is a conservative appointed by George W. Bush.

"When a Bush appointee to the federal courts issues a preliminary injunction that indicts the Obama administration for unconstitutional spying on Americans, that sets a serious precedent no matter what else happens as this case proceeds through the judicial system," Becky Bond, political director of CREDO Mobile, told TechNewsWorld.

"This decision ... is a clear sign that eventually the judiciary will hold the executive accountable for violating our Fourth Amendment rights," Bond continued. "The question now is not if, but when."

Leon stayed his decision pending appeal.

The Justice Department reportedly has responded to the ruling by stating its belief that the program is constitutional. It is studying the decision.

Judge Leon's Findings

The judge granted a temporary injunction sought by attorney Larry Klayman on behalf of Charles and Mary Ann Strange, parents of a Navy SEAL killed in a helicopter crash in Afghanistan in 2011, and himself.

Leon held that "plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephony metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation."

Although the government contends that telephony metadata will let it investigate potential terrorists faster than other methods might allow, it "does not 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 said.

The plaintiffs "have a substantial likelihood of showing that their privacy interests outweigh the government's interest in collecting and analyzing bulk telephony metadata, and therefore the NSA's bulk collection program is indeed an unreasonable search under the Fourth Amendment," Leon ruled.

Leon "did one of the most difficult things a judge ever has to do -- deciding when precedent no longer applies," Brian Pascal, a research fellow at UC Hastings Law School Institute for Innovation, told TechNewsWorld. "Courts historically have had trouble drawing principled lines between past precedent and current facts based upon changes in technology."

Reaction to the Ruling

"This important ruling shows the constitutionality of the NSA bulk collection program is on shaky ground," Jake Laperruque, a Fellow at the Center for Democracy and Technology, told TechNewsWorld. "It is likely to increase focus in Congress on the need for reform through passage of the USA Freedom Act."

H.R. 3361, proposed by Rep. Jim Sensenbrenner, R-Wisc., one of the authors of the Patriot Act, seeks to end bulk collection of Americans' data under Section 215 of the Patriot Act. It has strong bipartisan support. A companion bill, S. 1599, has been introduced in the Senate.

Judge Leon's ruling "is a well-thought-out and articulate attack on the government's activities," remarked Yasha Heidari, managing partner at the Heidari Power Law Group.

Meanwhile, President Obama reportedly has called a meeting with top tech leaders in the wake of the ruling. National security and unauthorized intelligence disclosures are among the topics to be discussed.

Don't Count Your Chickens...

It might be a little too soon to celebrate Leon's ruling as a victory for constitutional rights.

An appeals court might overturn his findings on procedural grounds without touching on the constitutional arguments, suggests a post by Darren Leonard Hutchinson in the Dissenting Justice blog.

"I do think there is a good chance that the appellate courts will ignore the core issues in this case by simply using procedural technicalities," Heidari told TechNewsWorld.

However, "there is always the possibility that the constitutional issue could be raised in another lawsuit in a different court," he continued. "No matter how much the government may want it to, this is not an issue that is simply going to go away."


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