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Federal Judge Says NSA Phone Data Surveillance Likely Unconstitutional

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Last night, CBS’s legendary newsmagazine 60 Minutes took a look at the NSA, seemingly in an effort to assuage the public’s fear about the government reading our emails and keeping extensive records on dossiers on all of us. The piece has since been roundly criticized by many as a mere puff piece with little to no actual reporting happening—this piece on the Verge does a nice job of rounding up the problems with the piece and pointing out the real and important questions that still remain about the surveillance agency.

Almost as if on cue, however, the New York Times reports today that a federal judge has said that the NSA’s program that records and stores Americans’ phone metadata—“ information like the numbers called and received and the date, time and duration of the call, but not the content,” the report explains—is likely unconstitutional.

Judge Richard J. Leon of the District of Columbia weighed in on a lawsuit brought against the United States Government by Charles Strange and Larry Klayman—the latter of whom happens to be known as a “conservative American public interest lawyer.” In his judgment, Judge Leon issued a preliminary injunction against the government because of the magnitude and implications of the case, but wrote this in his decision:

“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.”

The Times piece also offers up a statement from Edward Snowden, the NSA contractor who leaked details about PRISM earlier this year and has since gone into hiding:

“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.”

The ruling will, certainly, be appealed, and on up the ladder we will go. While this can be hailed as a victory for privacy advocates and those disturbed by the revelations concerning the NSA, nothing will really come from this unless the Supreme Court itself hears this case, or one like it.

Furthermore, let’s also keep in mind what effect even a Supreme Court ruling would have on the government’s surveillance. According to the Times piece, the government’s defense relies on a case from 1979 that, it could be argued, allows for the collection of metadata, despite the fact that phones and communications have evolved considerably since then. But even without that ruling—without any defense at all—if there are government agencies with the ability and the directive to do this kind of surveillance, what difference does it make if a judge in a courtroom says they can’t do it? Short of unplugging all the computers in the NSA’s offices, the genie, as they say, is out of the bottle.

Let’s hope I’m wrong and that judicial intervention still holds the power it’s supposed to possess. In that case, let’s see what the next judge in line has to say about all this.

— Brian P. Rubin

Brian's been a writer-for-hire for the better part of ten years, creating content for Geek Magazine, Machinima, and even Hasbro's Trivial Pursuit. After living in New York for most of his life, he recently relocated to Minneapolis, Minnesota, where he plays drums in his band, the Lost Wheels, and roams the land for the midwest's best approximation of actual pizza.