NSA Bulk Collection Loses Its Legal Footing

Written by Jake Laperruque

Yesterday federal District Court Judge Richard Leon ruled that the NSA telephony metadata bulk collection program likely violates the Fourth Amendment, and that Smith v. Maryland does not serve as binding precedent with regard to the program. This ruling is significant – it strongly undercuts the government’s main legal defense of the program, and further demonstrates the need to end bulk collection of Americans’ private information.

The D.C. District Court’s holding that Smith does not apply to the bulk collection program is important. Since the program was first brought to light this June, Smith, a 1979 Supreme Court decision that a single individual did not have an expectation of privacy regarding several days of phone records, has served as the Administration’s main legal argument to support bulk collection. This case has also been the foundation of Foreign Intelligence Surveillance Court opinions by Judge Claire Eagan and Judge Mary McClaughlin maintaining that the program is constitutional. With this ruling, proponents of the bulk collection program can no longer dismiss Fourth Amendment concerns as an issue already resolved.

This ruling, for the first time, provides legal precedent addressing the distinctions between the individual collection of phone records in 1979 at issue in Smith, and the NSA bulk collection program that continuously gathers all phone data on millions of Americans. As Judge Leon notes, the collection occurring in Smith was far more limited than it was today. Smith involved an individual request for two-weeks of phone records, while the NSA program collects five years of phone records through “a formalized policy under which the service provider collects information for law enforcement purposes.”

More importantly, the court highlights the significant differences between telephony metadata as it existed in 1979 compared to today, and the strong impact these changes have on the importance of the data to privacy. The onset of mobile phones has dramatically increased the quantity of information the government gathers through phone records, and modern computer technology allows for incredibly invasive analysis of these data. Combined, these factors make phone records highly revealing and cause our expectation of privacy regarding these records to be entirely different than it was in 1979 – a point we and others have emphasized during this year’s surveillance debate. It was not an exaggeration for Judge Leon to say today’s use of communications records would be “in 1979, the stuff of science fiction.”

This case demonstrates the ever-growing concern regarding government surveillance, and the desire for reform. The NSA has frequently boasted that it is the subject of significant oversight from both Congress and the courts, but the bulk collection program now faces significant condemnation by both. In the courts, it has been deemed likely to constitute a violation of the Fourth Amendment, and labeled as an “almost-Orwellian” use of technology that “significant intrudes” on Americans’ privacy. In the legislature, over one hundred Members of Congress are currently sponsoring the USA FREEDOM Act, which would bar bulk collection of Americans’ records.

As the Administration examines the reforms submitted last week by the President’s Surveillance Review Group, it should keep this growing disapproval in mind, and consider replacing the program with a balanced approach that does not compromise the privacy of millions of innocent Americans. However, Congress should not wait for voluntary action by the Executive branch – it should act now to prohibit bulk collection through passage of the USA FREEDOM Act.

Finally, this ruling is notable in its strong rejection of the government’s contention that the bulk collection program helps protect national security. Judge Leon states, “I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations.” This skepticism is warranted given that “the Government 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.”

If the government wishes to employ a program that intrudes on the privacy of millions of Americans, it bears the burden of demonstrating that program’s necessity. It has yet to meet that burden of proof to the public or to the lawmakers who have examined the top-secret documents regarding its use. It is time this overly invasive program is replaced with collection methods that provide security without intruding on the privacy of those who are never suspected of wrongdoings.

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