by Stephen Lendman
On December 16, Federal District Court of the District of Columbia Judge Richard Leon issued a damning 68-page ruling. He called NSA spying unconstitutional. It's "almost Orwellian," he said.
"The threshold issue is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephone metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets."
"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."
"Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment."
It prohibits unreasonable searches and seizures. Doing so violates core constitutional law. Mass NSA surveillance does it writ large.
It has nothing to do with national security. America's only enemies are ones it invents. NSA spies globally. It watches everyone. It monitors allies. It's about control.
It's for economic advantage. It's to be one up on foreign competitors. It's for information used advantageously in trade, political, and military relations.
Domestic spying is longstanding. It's institutionalized. It's unconstitutional. It doesn't matter. Nothing before was done to stop it. Judge Leon took an important first step
ACLU Deputy Legal Director Jameel Jaffer commented on his ruling, saying:
"This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA's call-tracking program can't be squared with the Constitution."
"As Judge Leon notes, the government's defense of the program has relied almost entirely on a 30-year-old case that involved surveillance of a specific criminal suspect over a period of two days."
"The idea that this narrow precedent authorizes the government to place every American under permanent surveillance is preposterous."
"We hope that Judge Leon's thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA's surveillance activities back in line with the Constitution."
"The bipartisan USA Freedom Act, which has 130 co-sponsors already, would address the constitutional problems that Judge Leon identifies."
The Electronic Frontier Foundation (EFF) calls the proposed measure "a substantial improvement to America's laws regarding mass surveillance."
At the same time, it's "a floor, not a ceiling." It addresses a small portion of NSA abuses and "overreaching government secrecy."
It leaves important unfinished business. EFF endorses passage. Lots more needs to be done, it stressed.
Judge Leon's ruling marks the first successful NSA legal challenge. Conservative activist Larry Klayman and Charles Strange filed suit (Klayman v. Obama). Strange's son was killed in Afghanistan.
Months earlier, ACLU filed a similar suit (ACLU v. Clapper). It challenged "the constitutionality of the National Security Agency's mass collection of Americans' phone records."
It argued that doing so violates Fourth and First Amendment rights, saying:
"Because the NSA's aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment."
"The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity."
NSA claims authorization under the Patriot Act's Section 215. It's known as the "business records" provision.
It permits collecting "any tangible thing...relevant" to alleged foreign intelligence or terrorism related investigations. It way oversteps. It's unconstitutional.
It permits warrantless searches without probable cause. It violates fundamental First Amendment rights. It does so by mandating secrecy.
It prohibits targeted subjects from telling others what's happening to them. It compromises free expression, assembly and association.
It does so by authorizing the FBI to investigate anyone based on what they say, write, or do with regard to groups they belong to or associate with.
It violates Fourth and Fifth Amendment protections by not telling targeted subjects their privacy was compromised. It subverts fundamental freedoms for contrived, exaggerated, or nonexistent security reasons.
"Whatever Section 215's 'relevance' requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans," said ACLU.
On November 22, US District Court for the Southern District of New York Judge William Pauley heard arguments. He hasn't yet ruled.
Judge Leon granted plaintiffs' request for a preliminary injunction. He ordered the Obama administration to stop collecting their phone data.
He ruled whatever it currently has must be destroyed. At the same time, he stayed his ruling. He cited potential "significant national security interests at stake."
He gave Obama's Justice Department time to appeal. He said his decision applies only to plaintiffs. It doesn't affect NSA's mass data-mining.
At the same time, his ruling is an important first step. For years, he said, constitutional issues were adjudicated under "a cloak of secrecy."
He referred to the unaccountable FISA court. It's virtually rubber-stamp. It mocks judicial fairness and legitimacy.
Judge Leon's ruling is an important step in the right direction. "While Congress has great latitude to create statutory scheme like FISA," he said, "it may not hang a cloak of secrecy over the Constitution."
EFF called his decision "historic." Ruling for Klayman and Strange symbolically condemns mass surveillance.
Obama's Justice Department relies on two Supreme Court rulings. In Miller v. United States (1976), the Supreme Court ruled:
"The Fourth Amendment does not prohibit the obtaining of information revealed to a third-party and conveyed by him to Government authorities, even if it is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third-party will not be betrayed."
The Court added that information revealed to another source "takes the risk (of being) conveyed" to someone else.
In Smith v. Maryland (1979), the High Court extended the so-called third party doctrine to telephone communications.
It said in "expos(ing) that information" to phone company equipment, individuals "assumed the risk that the company would reveal to police the numbers dialed."
In US v. Jones (2012), Supreme Court Justice Sonia Sotomayor acknowledged the need to update Fourth Amendment protections, saying:
"People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers."
"I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."
In United States v. US District Court (the so-called Keith case) (1972), a unanimous Supreme Court ruling upheld Fourth Amendment protections in cases involving domestic surveillance targeting a domestic threat.
Judge Leon addressed Smith v. Maryland, saying:
"The question before me is not the same question that the Supreme Court confronted in Smith." It's "a far cry from the issue in this case."
He differentiated between then and now. Obtaining limited information on one person is vastly different from daily mass surveillance. He was blunt stating:
"This short-term, forward looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith."
"The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years' worth of data."
"And I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever."
"Admittedly, what metadata is has not changed over time."
"As in Smith, the types of information at issue in this case are relatively limited: phone numbers dialed, date, time, and the like."
"But the ubiquity of phones has dramatically altered the quantity of the information that is now available, and more importantly, what that information can tell the Government about people's lives."
"Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago."
"Whereas some may assume that these cultural changes will force people to 'reconcile themselves' to an 'inevitable' 'diminution of privacy that new technology entails,' I think it is more likely that these trends have resulted in a greater expectation of privacy and a recognition that society views that expectation as reasonable."
In other words, privacy intrusions today are simple. They happen with digital age technology ease. Greater diligence is required to protect rights too important to lose.
Courts and Congress are obligated to do so. Judge Leon's ruling represents an important first step in the right direction. Lots more needs to be done.
A Final Comment
Edward Snowden issued a statement. He praised Judge Leon's ruling, saying:
"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."
"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."
Separately, he offered to help Brazil investigate harmful NSA spying. He'll do it in return for permanent political asylum. He said so in an open letter to all Brazilians. Folha de S. Paulo published it.
It's a Brazilian daily broadsheet. Snowden in part said:
"I've expressed my willingness to assist where it's appropriate and legal, but, unfortunately, the US government has been working hard to limit my ability to do so."
"Until a country grants me permanent political asylum, the US government will continue to interfere with my ability to speak out."
Brazilian senators asked Snowden for help. He's willing to provide it.
"I don't want to live in a world where everything that I say, everything I do, everyone I talk to, every expression of creativity or love or friendship is recorded."
"That's not something I'm willing to support, it's not something I'm willing to build, and it's not something I'm willing to live under."
It remains to be seen if Brazil takes him up on his offer. Snowden urged it, concluding:
"If Brazil hears only one thing from me, let it be this: when all of us band together against injustices and in defense of privacy and basic human rights, we can defend ourselves from even the most powerful systems."
Stephen Lendman lives in Chicago. He can be reached at firstname.lastname@example.org.
His new book is titled "Banker Occupation: Waging Financial War on Humanity."
Visit his blog site at sjlendman.blogspot.com.
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