Are Our Surveillance Laws Obsolete?

On Monday, US District Court Judge Richard Leon ruled that the NSA’s sweeping phone-metadata program is likely to be unconstitutional. Lyle Denniston gives details:

From a legal standpoint, the most significant part of Judge Leon’s ruling was that it would undercut the most significant foundation the government has claimed for the legality of the telephone data sweeps.

He ruled that he was not bound by a 1979 Supreme Court ruling that both the Obama Administration and the secret FIS court that has approved the data sweeps have interpreted as authorizing the program.  Judge Leon said that the Supreme Court in the case of Smith v. Maryland did not deal with the communications world as it exists today, so its ruling does not directly apply to what NSA is now doing on a worldwide basis in search of terrorism information.  He found that, today, telephone and other communications companies are essentially engaged in a joint intelligence-gathering program with the federal government.

Orin Kerr felt that the ruling was weakly argued:

Today’s cell phones are not just phones, Judge Leon emphasizes. They are computers with functionality wholly apart from telephony. Today’s cell phones are maps, cameras, text messaging machines, and even lighters that can be held up at rock concerts. As a result, Judge Leon argues, Americans have an “entirely different” relationship to phones than they did in 1979. And Judge Leon therefore cannot possibly follow a decision from the pre-cell phone era.

I find this argument deeply unpersuasive. Most obviously, why does it matter that today’s phones are combined in a single device with other functions? The NSA’s program is not collecting information about the use of those other functions. It is only collecting the same information that was collected in Smith v. Maryland: Information about numbers dialed using the device’s telephone functionality and when the call was made.

Emily Bazelon explains what has changed since 1979:

At issue is the part of the Patriot Act, building on the Foreign Intelligence Surveillance Act, that allows the government to collect an enormous trove of phone call metadata, and then query it based on an “identifier” phone number called a “seed.” A seed is a number associated with terrorist activity, based on a reasonable and articulable suspicion. Sounds OK so far. But wait: Once you’re an NSA agent with a seed, you can analyze all the numbers within three hops from that seed—meaning the numbers the seed called and received calls from, and the numbers connected to those numbers. Judge Leon points out that if one seed calls just 100 numbers in five years, and each of the numbers in the next two hops also connects with 100 numbers, the NSA can trawl through the metadata for 1 million phone numbers. And that’s got to be a low-ball estimate, since it doesn’t take into account the possibility that someone used one of those phone numbers to order from, say, Domino’s Pizza, allowing the NSA to vacuum up zillions of other callers. There were fewer than 300 seeds in 2012, according to the NSA. Still, the data collection ratchets up exponentially so fast that we have to be talking about a database with everyone’s metadata.

Ambers weighs in:

Does the government have a compelling enough interest to justify these privacy violations? Leon concludes that they haven’t made that case. There is no important government interest that would be placed in jeopardy if the program were adjusted to require some sort of individualized suspicion to be articulated, he writes, and the government never produced evidence that the program had stopped an imminent terrorist attack that a program with more safeguards would not have.

Amy Davidson reads through the opinion:

There are several exclamation points in this decision. Judge Leon plainly feels that he has been lied to, and that we all have been. And he seems to be done with it. We hear a lot, he writes, about the expectation of privacy, and how it has disappeared in this day and age—don’t we all know we leave digital trails that can be followed? If we have given up on the privacy of our metadata, Judge Leon writes (quoting Smith in part), “I would likely find that is the result of ‘ “conditioning” by influences alien to well-recognized Fourth Amendment freedoms.’ ” In other words, cynicism does not give the government a pass when it comes to its constitutional obligations. And neither should the courts. We are allowed to expect more.

Allahpundit considers Snowden’s impact:

[I]f not for Snowden’s leaks, this case literally might not have happened. Per the Supreme Court’s ruling in the Clapper case earlier this year, you can’t get standing before a federal judge by merely speculating that the NSA is targeting you. You need to show a real likelihood of concrete injury. Right, says Leon — and now, thanks to Snowden’s exposure of PRISM, we’ve got that. The leaker has changed the legal facts on the ground, enough so to make a Fourth Amendment lawsuit possible.

Drum bets that the ruling will be reversed:

I’m delighted that Snowden helped this get more attention, and delighted that a judge wants it to stop.  But district court judges make lots of rulings that never go anywhere, and this is most likely one of them.

Andrew Cohen praises the judge:

Leon has given the nation a gift: In a single document, vetted by an independent mind, he chronicles both the factual history of the metadata program as well as the statutory underpinnings of it. He places the facts and the law into constitutional context. And he places the constitutional dynamics of the case into historical context. It’s a worthy endeavor. Even if Leon is overturned on appeal, it won’t mean he was wrong.