Early this week, US District Court Judge Richard Leon ruled that the US National Security Agency’s (NSA) domestic telephone surveillance program collecting information on nearly all telephone calls made within the country is likely unconstitutional, violating the Fourth Amendment to the US Constitution banning unreasonable searches and seizures. Additionally — and perhaps more importantly — Leon found that the US Justice Department had failed to demonstrate that the surveillance program had helped prevent terrorist attacks.
“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,” wrote Leon in his 68-page opinion. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.”
US District Court Judge Richard Leon’s opinion that the NSA’s telephone call metadata surveillance program is likely unconstitutional.
For at least seven years, the NSA’s telephone call metadata surveillance program has been repeatedly and consistently approved by the Foreign Intelligence Surveillance Court (FISC) and has been found to be within the bounds of constitutionality in one court. Charlie Savage writing for the New York Times cites US Department of Justice as saying that “15 separate judges on the surveillance court [FISC] have held on 35 occasions that the calling data program is legal.”
Leon issued a preliminary injunction barring the NSA from collecting telephone call metadata but then stayed the order pending certain government appeal, acknowledging that only the secret FISC could hear the arguments. It’s likely that this case — or one of the other similar pending cases — will be heard by the US Supreme Court, resulting in a definitive legal ruling on the constitutionality of the post-9/11 surveillance activities by the US government.
Edward Snowden, a former NSA contractor, originally disclosed classified information documenting the NSA’s telephone call metadata surveillance program last June. “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,” said Snowden in a statement. “Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
Instead of being offered protection under the Whistleblower Protection Act, last June, Snowden was charged under the Espionage Act with theft of government property, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person.