Back in December of 2013, DC district court judge Richard Leon shocked many by declaring the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act to be unconstitutional
. Just a few months ago, the DC circuit appeals court overturned that ruling
and sent it back to the lower court, saying that the plaintiff, Larry Klayman, failed to prove he had standing to bring the lawsuit -- mainly because Snowden only had revealed that the NSA was scooping up all Verizon Business Network phone records, and Klayman was a Verizon Wireless
customer. That it had since been revealed
that the NSA also got Verizon Wireless records was basically ignored.
As we noted in September, Judge Leon made it pretty clear that he still believed
the program was unconstitutional, and pushed Klayman to get the process moving so he could rule. Klayman was able to bring new plaintiffs (J.J. Little and J.J. Little & Associates)) into the case who were Verizon Business Network Services subscribers to take that issue out of play. And now that's happened, and Leon has, once again declared the program unconstitutional
and ordered an injunction to have it stopped.
With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution. It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry. Although this Court appreciates the zealousness with which the Government seeks to protect the citizens of our Nation, that same Government bears just as great a responsibility to protect the individual liberties of those very citizens.
Thus, for all the reasons stated herein, I will grant plaintiffs J.J. Little and J.J. Little & Associates' requests for an injunction and enter an order consistent with this Opinion that (1) bars the Government from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephone metadata associated with these plaintiffs' Verizon Business Network Services accounts and (2) requires the Government to segregate any such metadata in its possession that has already been collected.
He did not
grant the same order for Klayman or other plaintiffs who were not customers of Verizon Business Services, in order to avoid the standing question. Perhaps more interesting is that, unlike last time, he did not give the government an immediate stay on this ruling, and you can tell he's a bit annoyed about what happened last time:
In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised. I did so with the optimistic hope that the appeals process would move expeditiously. However, because it has been almost two years since I first found that the NSA's Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm... I will not do so today.
Good for him.
As noted above, Judge Leon finds standing just for the two new plaintiffs, basically accepting the appeals court's ruling earlier that Klayman and other plaintiffs failed to "adequately" sustain their claims of harm. He rejects some silly defenses from the DOJ, including the claim that we no longer know if Verizon Business Network Services is a part of the program. As Leon says "it defies common sense for defendants to argue, as they apparently do that the Government has chosen to omit from this breathtakingly broad metadata collection Program a provider that the Government surveilled in the past and that, presumably, has the infrastructure to continue assisting in that surveillance. In fact it would make no sense whatsoever for the Government to use all available tools except
VBNS call data to accomplish its putative goals."
Then onto the important stuff: the Fourth Amendment. Leon tackled much of that back in his 2013 opinion, but there's more here, noting that the problem is still in place, even after the USA Freedom Act passed:
In my December 2013 Opinion, I explained at length why both the indiscriminate bulk
collection of telephony metadata and the analysis of that data each separately constitute a
search within the meaning of the Fourth Amendment.... Neither the recent changes in the operation of the Program, nor the passage of the
USA FREEDOM Act, has done anything to alter this analysis. The fact remains that the
indiscriminate, daily bulk collection, long-term retention, and analysis of telephony
metadata almost certainly violates a person's reasonable expectation of privacy.
Then there's the question of whether these collections count as "unreasonable searches" and Judge Leon finds that they do. In part, he tosses out the usual reliance on Smith v. Maryland by the government, which says that if you give data over to a third party, you no longer have any privacy rights over it (the so-called "third party doctrine"). The ruling compares it to the diminished privacy rights you have in going through airport security:
Notably, Americans know that airports are discrete areas in which certain rights
otherwise enjoyed are forfeited.... It is their choice to enter that space and, in so
doing, to check certain rights at the door. Not so with cellphones. As already described,
cellphones have become a constant presence in people's lives. While plaintiffs' privacy
interests in their aggregated metadata may be somewhat diminished by the fact that it is
held by third-party service providers, this is a necessary reality if one is to use a
cellphone at all, and it is, therefore, simply not analogous to the context of voluntarily
entering an airport. In this case, plaintiffs have asserted that the searches were a
substantial intrusion on their privacy, and I have no reason to doubt that, nor to find that
their privacy expectations should have been diminished given the context. Rather, I
conclude that plaintiffs' privacy interests are robust.
Judge Leon also notes that the public really had no idea this was happening, until recently:
Finally, far from Americans being put on notice of the Bulk Telephony Metadata
Program such that they could choose to avoid it, the Program was, and continues to be,
shrouded in secrecy. This may, of course, be practically necessary for the Program to be
effective, but it nevertheless increases the level of the privacy intrusion.
Judge Leon then looks to see if, maybe, just maybe the government can justify this intrusion by showing that these searches were necessary to stop terrorist attacks, but again, finds no evidence to support that.
To date, the Government has still not cited a single instance in which telephone
metadata analysis actually stopped an imminent attack, or otherwise aided the
Government in achieving any time-sensitive objective. Although the Government is not
required to adduce a specific threat in order to demonstrate that a "special need" exists,
providing this Court with examples of the Program's
success would certainly strengthen the Government's argument regarding the Program's
efficacy. This is especially true given that the Program is not designed for detection and
deterrence like most other programs upheld under the "special needs" doctrine. Indeed,
most warrantless searches upheld under the "special needs" doctrine boast deterrence as a
substantial Governmental interest.
He also rejects the idea that the USA Freedom Act shows that Congress is okay with the program and that proves that the NSA had the "special needs" necessary to keep the program running. And he clearly thinks this is a dumb argument, even saying a sarcastic "Please!" in his response:
....the Government makes the bootstrap argument that the enactment of
the USA FREEDOM Act confirms the importance of this Program to meeting the
Government's special needs, and suggests that this Court should defer
to that judgment. Please! I recognize that my duty to evaluate the
efficacy of this Program is "not meant to transfer from politically accountable officials to
the courts the decision as to which among reasonable alternative law enforcement
techniques should be employed to deal with a serious public danger."... Nonetheless, while "the choice among
such reasonable alternatives remains with the governmental officials," I
must still determine whether the Program is reasonably effective in accomplishing its
goals, even if not optimally so.... This is a conclusion I simply cannot reach given the continuing lack
of evidence that the Program has ever actually been successful as a means of conducting
time-sensitive investigations in cases involving imminent threats of terrorism.
From there he goes on to detail why letting the program continue to spy on the plaintiffs would create significant harm and rejects the idea that the government can't respond quickly enough, noting that it's had 22 months since his original ruling to figure out how to handle this.
Of course, again, the ruling only applies to the bulk phone records of two plaintiffs -- and the entire program is set to end at the end of this month anyway, but it is still an important victory for the 4th Amendment and against NSA bulk surveillance.