[Two excellent long articles on the recent court decision that went against the NSA. This is an extremely hopeful decision, although it won’t be decisive until and unless it reaches the supremes. -egg]
Ever since Edward Snowden’s revelation that the National Security Agency was collecting and storing data on every phone call every American makes and every text every American sends, the Obama administration has maintained that the program is fully lawful, and that it has been approved repeatedly by all three branches of government. This defense has always been misleading. Since the program was developed, approved, and applied in secret, it had never been subject to public scrutiny or adversarial judicial testing. Now it has, and it has failed dramatically.
On Monday, US District Judge Richard Leon, an appointee of George W. Bush, ruled that the NSA’s program “almost certainly” violates the Fourth Amendment, and issued a preliminary injunction against the program. In the judge’s words:
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… 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 gradual and silent encroachments by those in power,” would be aghast.
via The NSA on Trial by David Cole | NYRblog | The New York Review of Books.
But yesterday, for the first time, a federal judge said that Smith v. Maryland, which is now thirty-four years old, is irrelevant to the question of whether the N.S.A.’s mass surveillance program is constitutional. Judge Richard J. Leon, the U.S. district judge who is hearing a challenge to the N.S.A.’s program, essentially declared that the facts and circumstances surrounding the use of a pen register on Michael Lee Smith’s phone in 1979 and the N.S.A.’s collection and search of everyone’s phone records in 2013 are so vastly different that it is ludicrous to use the decades-old opinion to justify the N.S.A. program.
“The question before me is not the same question the Supreme Court confronted in Smith,” he wrote. “Indeed, 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 N.S.A. and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply doesn’t apply? The answer, unfortunately for the government, is now.”