Richard Leon

— There is the very real prospect that the (NSA) program will go on for as long as America is combatting terrorism, which realistically could be forever!
— I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.
— I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.
(Leon referred to a 1979 Supreme Court ruling, Smith v. Maryland, that the government has cited in arguing that no one has an expectation of privacy for the telephone data that phone companies keep as business records. The court ruled then that police didn’t need a warrant to obtain such phone records, but Leon said technology has changed dramatically since then.)
— When do present-day circumstances — the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not a apply? The answer, unfortunately for the government, is now.
The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979.
— I cannot imagine a more ‘indiscriminate‘ and ‘arbitrary invasion‘ than this systemic and high-tech collection and retention of personal data on virtually every single citizen for the purposes of querying and analyzing it without prior judicial approval. 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 abridgment of freedom of the people by gradual and silent encroachments by those in power,‘ would be aghast.
— Of course, the public has no interest in saving the government from the burdens of complying with the Constitution! Then the government frets that such an order ‘could ultimately have a degrading effect on the utility of the program if the injunction is this case precipitated successful requests for such relief by other litigants.‘ … I will leave it to other judges to decide how to handle any future litigation in their courts.

2 thoughts on “Richard Leon

  1. shinichi Post author

    Judge: NSA spying ‘almost Orwellian,’ likely unconstitutional

    by Olivier Knox

    http://news.yahoo.com/judge–nsa-spying-%E2%80%98almost-orwellian—likely-unconstitutional-200101613.html

    In a stinging rebuke to President Barack Obama’s surveillance policies, a federal judge on Monday branded the National Security Agency’s mass collection of Americans’ telephone data “almost Orwellian” and likely a violation of the Constitution. Former NSA contractor Edward Snowden cheered the ruling.

    Appeals Court Judge Richard Leon invoked Founding Father James Madison and the Beatles in a frequently scathing ruling. Leon, appointed by then-President George W. Bush, ordered the government to halt bulk collection of so-called telephony metadata and destroy information already collected through that program. But he suspended his order as the case works its way through the courts.

    “I cannot imagine a more ‘indiscriminate’ and ‘abitrary 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,” Leon wrote.

    The judge also dealt a blow to the government’s argument that such surveillance programs — a source of controversy ever since Snowden revealed their reach in a series of unauthorized disclosures — are necessary to thwarting terrorist plots.

    “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,” he wrote.

    Leon said Founding Father James Madison would likely be “aghast” at the NSA’s activities — but also conjured up a Beatles-themed image to rebut the government’s suggestion that it does not collect Verizon metadata.

    “To draw an analogy, if the NSA’s program operates the way the Government suggests it does, then omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn’t make any sense, and I cannot believe the Government would create, maintain, and so ardently defend such a system,” he wrote in footnote 36 on page 38.

    Among Leon’s other flourishes, he warned that the so-called war on terrorism “realistically could be forever!” He expressed concerns about the “almost Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States.” And he said modern-day surveillance tactics would have been “the stuff of science fiction” at the time a precedent ruling was issued.

    The White House had no immediate response to the ruling.

    But Snowden, in a statement distributed by independent journalist Glenn Greenwald, cheered.

    “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,” Snowden said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

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