Ride the Lightning

Federal Judge Deals Blow to NSA's Phone Data Collection Program

December 17, 2013

Yesterday, in a 68-page ruling, Judge Richard J. Leon of the District of Columbia said that the National Security Agency program that is systematically keeping records of all Americans’ phone calls likely violates the Constitution, and he ordered the government to stop collecting data on two plaintiffs’ personal calls and destroy the records of their calling history.

As the New York Times reported, the judge called the program’s technology “almost Orwellian” and suggested that James Madison, the author of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in such a way.

“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 and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Judge Leon stayed his injunction “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues,” allowing the government time to appeal it, a matter that he said could take some six months.

The ruling is the first successful legal challenge brought against the program. It was brought by several plaintiffs led by Larry Klayman, a conservative public-interest lawyer. The American Civil Liberties Union has filed a similar lawsuit in the Southern District of New York.

Edward Snowden understandably hailed the ruling and expects many similar rulings.

Though long and detailed, the ruling is not a final judgment, but a preliminary injunction to stop the data collection while the two plaintiffs pursue the case. It turned on whether there was a substantial likelihood that they would ultimately succeed and whether they would suffer substantial harm in the meantime.

Judge Leon left little doubt about his view.

“The question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval,” he wrote. “For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.”

It seems a very good moment to lift a glass to Judge Leon.

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