Judge pulls no punches in ruling against NSA program

The author of the U.S. Constitution would be 'aghast,' Judge Richard Leon wrote

By , IDG News Service |  Government

"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."

On whether the NSA program violates the Fourth Amendment to the U.S. Constitution: "The threshold issue that I must address, then, is whether the 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 have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by the gradual and silent encroachments by those in power,' would be aghast."

On the DOJ's defense of the program, using the 34-year-old Supreme Court case, Smith v. Maryland: "The question in this case can more properly be styled as follows: 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 thirty-four years ago that a precedent like Smith does not apply? The answer, unfortunately for the Government, is now."

"The relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved for the last seven years between the Government and telecom companies .... In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives. It's one thing to say that people can expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."

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