Do the American people have an even greater expectation of privacy in the digital era?
That is what U.S. District Court for the District of Columbia Judge Richard Leon has ruled, in a case enjoining the National Security Agency (NSA) from gathering intelligence, including hundreds of millions of phone and email, on every single person in the country, a program revealed by former defense contractor Edward Snowden.
Although Leon stayed his decision pending appeal, this is without a doubt a serious blow against the program’s constitutionality.
Citing the exponential leaps that have been made in the technology world to date, Leon found that plaintiffs Larry Klayman and Charles Strange would be substantially likely to prevail in their case against the nation’s top intelligence agency — and well they should.
“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,” Leon wrote.
Pretty clear cut summation of what’s going on. Whether the surveillance program is pulling in the content of every communication or not, the scope of the policy’s pulling in metadata on just about everyone is not lost on Leon. That’s bad enough, he says.
“[N]ot only is the Government’s ability to collect, store, and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people’s telephony metadata is much greater, as well,” he wrote.
He continued, “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.”
Such a ruling would be a departure from current precedent. In Smith v. Maryland (1979), the Supreme Court allowed a caller identification system to be installed on a woman’s phone by police to monitor incoming calls by a threatening man without a warrant.
But that was before almost every single communication has been digitized and universally archived.
The government bases the legality of the program “in large part on a thirty-four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable.”
Leon summarized succinctly what is at stake: “the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances… the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval.”
He concluded, “it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.”
Leon himself is no liberal activist judge, having served in the Reagan and first Bush administrations as Deputy Assistant Attorney General, and was nominated to his current judgeship by former President George W. Bush in 2001 and confirmed in 2002.
His ruling was merciless, wherein he warns the government to begin preparing to shut down the surveillance program once and for all should the plaintiffs ultimately prevail throughout the appellate stage.
Leon warned the government, pulling no punches, “I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith. Accordingly, I fully expect that during the appellate process, which will consume at least the next six months, the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld. Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.”
A cynic might suggest that the 60 Minutes fluff piece done by a former intelligence official on Sunday to defend the NSA program was designed to get out in front of this ruling, and to somehow put a human face on this unprecedented data collection that would make the East German Stasi blush.
The NSA’s aims are undoubtedly noble to keep the homeland safe, but good intentions alone cannot sustain such a regime that sweeps everyone into a web of monitoring.
Just as Americans have a greater expectation of privacy in the information era from unreasonable searches, so too should they have a greater intolerance of rank propaganda being spilled on the air waves masquerading as a defense of that very liberty.
Judge Leon is to be thanked for his brutal honesty in this case, and for once again giving the nation an opportunity to reflect that the choices we make to defend and protect our society must still be made within its constitutional confines to sustain our liberty, or else we may be left with little more than an ubiquitous surveillance state. Which is to say, with no expectation of privacy whatsoever.
Robert Romano is the senior editor of Americans for Limited Government.