http://www.cnn.com/2013/12/16/justice/nsa-surveillance-court-ruling/
( Judge Leon is a HERO ) Thank you, Your Honor
Judge: NSA domestic phone data-mining unconstitutional
updated 8:52 PM EST, Mon December 16, 2013
Analyst: NSA ruling only affects two
STORY HIGHLIGHTS
- Snowden says he knew the surveillance would not withstand legal review
- The limited ruling opens the door to possible further legal challenges
- The NSA data-mining can continue, pending a likely appeal
- Classified leaks by Edward Snowden revealed the extent of the data-mining
U.S. District Judge
Richard Leon said the National Security Agency's bulk collection of
metadata -- phone records of the time and numbers called without any
disclosure of content -- apparently violates privacy rights.
His preliminary ruling favored five plaintiffs challenging the practice, but Leon limited the decision only to their cases.
NSA phone surveillance unconstitutional?
"I cannot imagine a more
'indiscriminate' and 'arbitrary invasion' than this systematic and
high-tech collection and retention of personal data on virtually every
citizen for purposes of querying and analyzing it without prior judicial
approval," said Leon, an appointee of President George W. Bush.
"Surely, such a program infringes on 'that degree of privacy' that the
Founders enshrined in the Fourth Amendment."
Leon's ruling said the
"plaintiffs in this case have also shown a strong likelihood of success
on the merits of a Fourth Amendment claim," adding "as such, they too
have adequately demonstrated irreparable injury."
He rejected the
government's argument that a 1979 Maryland case provided precedent for
the constitutionality of collecting phone metadata, noting that public
use of telephones had increased dramatically in the past three decades.
Leon also noted that 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."
However, he put off
enforcing his order barring the government from collecting the
information, pending an appeal by the government.
A Justice Department
spokesman said Monday that "we believe the program is constitutional as
previous judges have found," but said the ruling is being studied.
Democratic Sen. Mark
Udall of Colorado, a critic of the NSA data mining, said Leon's ruling
showed that "the bulk collection of Americans' phone records conflicts
with Americans' privacy rights under the U.S. Constitution and has
failed to make us safer."
He called on Congress to
pass legislation he proposed to "ensure the NSA focuses on terrorists
and spies - and not innocent Americans."
Explosive revelations
earlier this year by Snowden, a former NSA contractor, triggered new
debate about national security and privacy interests in the aftermath of
the September 2001 terrorist attacks.
Snowden's revelations
led to more public disclosure about the secretive legal process that
sets in motion the government surveillance.
In a statement
distributed by journalist Glenn Greenwald, who first reported the leaks,
Snowden said he acted on the belief that the mass surveillance program
would not withstand a constitutional challenge, and that Americans
deserved a judicial review.
"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," according
to Snowden, who is living in Russia under a grant of asylum to avoid
prosecution over the leaks in the United States.
Greenwald said the judge's ruling vindicates what Snowden did.
"I think it's not only
the right, but the duty of an American citizen in Edward Snowden's
situation to come forward, at great risk to himself, and inform his
fellow citizens about what it is their government is doing in the dark
that is illegal," the journalist told CNN's "Anderson Cooper 360" Monday
night.
The NSA has admitted it
received secret court approval to collect vast amounts of metadata from
telecom giant Verizon and leading Internet companies, including
Microsoft, Apple, Google, Yahoo and Facebook.
The case before Leon
involved approval for surveillance in April by a judge at the Foreign
Intelligence Surveillance Court (FISC), a secret body that handles
individual requests for electronic surveillance for "foreign
intelligence purposes."
Verizon Business Network Services turned over the metadata to the government.
Leon's ruling comes as the Obama administration completes a review of NSA surveillance in the aftermath of the Snowden leaks.
CNN's Jake Tapper
reported Monday that tech company executives would meet with President
Barack Obama at the White House on Tuesday to discuss the issue.
Obama plans to sit down
with Tim Cook of Apple and Eric Schmidt of Google, as well as executives
from Twitter, Microsoft, Facebook, Salesforce, Netflix , Etsy, Dropbox,
Yahoo!, Zynga, Sherpa Global, Comcast, LinkedIn and AT&T, a White
House official said.
Some of those companies
issued a joint letter last week calling on the government to change its
surveillance policies in the wake of the Snowden revelations.
Last month, the Supreme
Court refused to take up the issue when it denied a separate petition,
which was filed by the Electronic Information Privacy Center. Prior
lawsuits against the broader NSA program also have been unsuccessful.
Days after the Snowden disclosure in June, some Verizon customers filed legal challenges in the D.C. federal court.
The left-leaning American Civil LIberties Union also filed a separate, pending suit in New York federal court.
Under the Foreign
Intelligence Surveillance Act of the 1970s, the secret courts were set
up to grant certain types of government requests-- wiretapping, data
analysis, and other monitoring of possible terrorists and spies
operating in the United States.
The Patriot Act that
Congress passed after the 9/11 attacks broadened the government's
ability to conduct anti-terrorism surveillance in the United States and
abroad, eventually including the metadata collection.
In order to collect the
information, the government has to demonstrate that it's "relevant" to
an international terrorism investigation.
However, the 1978 FISA
law lays out exactly what the special court must decide: "A judge
considering a petition to modify or set aside a nondisclosure order may
grant such petition only if the judge finds that there is no reason to
believe that disclosure may endanger the national security of the United
States, interfere with a criminal, counterterrorism, or
counterintelligence investigation, interfere with diplomatic relations,
or endanger the life or physical safety of any person."
In defending the
program, NSA Director Gen. Keith Alexander told the Senate Judiciary
Committee last week that "15 separate judges of the FISA Court have held
on 35 occasions that Section 215 (of the Patriot Act) authorizes the
collection of telephony metadata in bulk in support of counterterrorism
investigations."
Initially,
telecommunications companies such as Verizon, were the targets of legal
action against Patriot Act provisions. Congress later gave retroactive
immunity to those private businesses.
The revelations of the
NSA program and the inner workings of the FISC court came after Snowden
leaked documents to the Guardian newspaper. Snowden fled to Hong Kong
and then Russia to escape U.S. prosecution.
The case is Klayman v. Obama (13-cv-881).
CNN's Tom Cohen contributed to this report.
