WASHINGTON  - A US judge has ruled that the National Security Agency programme which collects information on nearly all telephone calls made to, from or within the United States is unconstitutional .
US District Court Judge Richard Leon found that the programme appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.
Acting on a lawsuit brought by conservative legal activist Larry Klayman, judge Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal. “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 it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.
It’s the first major legal setback to the NSA’s mass surveillance programme since details of the programme were leaked by former NSA contractor Edward Snowden.
In a statement published in the New York Times, Snowden, who is now living in Russia, said the ruling will likely be the first of many. “I acted on my belief that the N.S.A.’s mass surveillance programmes 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 programme 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 preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.
Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance programme since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign
Intelligence Surveillance Court and found constitutional by at least one The Justice Department persuaded those courts that the collection of information on the time and length of calls, as well as the numbers called, did not amount to a search under the Fourth Amendment because that information is routinely available to telephone companies for billing purposes and is shared with those firms voluntarily.
Government lawyers and the judges who found the NSA programme legal pointed to a 1979 Supreme Court ruling, Smith v. Maryland, which found no search warrant was needed by police to install a device which recorded the numbers dialed on a particular phone line.
But Leon said the three-decade-old precedent was not applicable to a programme like the NSA’s because of its sophistication and because telephone use has become far more intense in recent years.
“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” the judge wrote. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”
The judge went on to conclude that the searches involved in the NSA metadata programme were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism.
“I have significant doubts about the efficacy of the metadata collection programme as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “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.”
The judge’s ruling was issued just before White House press secretary Jay Carney took the podium for the daily press briefing. Carney said he was unaware of the decision and he referred inquiries to the Justice Department.
“We are reviewing the court’s decision,” DOJ spokesman Andrew Ames said. Similar lawsuits challenging the program are pending in at least three other federal courts around the country. In addition, criminal defendants are beginning to challenge the program after the Justice Department disclosed it had played a role in investigating their cases.
Critics of the NSA programme leapt on Leon’s decision as evidence that the legal foundation of the surveillance effort is deeply flawed.
“The ruling underscores what I have argued for years: The bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the US Constitution and has failed to make us safer,” Senaor Mark Udall, a Democrat,said in a statement urging passage of legislation ending the so-called bulk collection programme. “We can protect our national security without trampling our constitutional liberties,” he added.