Judge dings the NSA metadata collection program

McClatchy Washington BureauDecember 16, 2013 


Flags at a press conference at the National Security Agency at the Threat Operations Center in 2006


A federal judge on Monday sided with challengers to a National Security Agency metadata collection program, thickening the legal plot.

In an important 68-page decision, U.S. District Judge Richard Leon ordered the NSA to stop collecting information concerning challengers Larry Klayman and Charles Strange for a key database. The agency is also supposed to destroy the Klayman and Strange data it's collected to date.

“I believe that bulk telephony metadata collection almost certainly does violate a reasonable expectation of privacy,” Leon wrote.

It's not a sweeping decision, as it covers only two individuals, and Judge Leon immediately stayed it pending the inevitable government appeal, but it's worth attending to.

Appointed to the federal bench by President George W. Bush in 2002, Leon noted that the controversial NSA collection program relies on 21st century technologies that may have outstripped the decades-old legal precedents being used to justify them. The only way to resolve the dilemma spelled out in Leon’s decision is for the Supreme Court to revisit the issues once the U.S. Court of Appeals for the District of Columbia Circuit takes a crack at it.

In a real twist, Leon said he had the authority to review whether the program is constitutionally suspect even though the data collection was approved by the secretive Foreign Intelligence Surveillance Court.

“Where, as here, core individual constitutional rights are implicated by government action, Congress should not be able to cut off a citizen’s right to judicial review of that government action simply because it intended the conduct to remain secret,” Leon wrote

In particular, Judge Leon notes how case law may have been bypassed by technological developments.

"The government, in its understandable zeal to protect the homeland, has crafted a counterterrorism program with respect to metadata...based in large part on a thirty four year old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and cell phone-centric lifestyle heretofore inconceivable," Leon wrote.

Leon's order concerns the NSA's "bulk telephony metadata program" associated with Verizon.

"I am not convinced at this point in the litigation that the NSA's database has ever really served the purpose of rapidly identifying terrorists in real-time investigations, and so I am certainly not convinced that removing two individuals from the database will degrade the program in any meaningful sense," Leon wrote.



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