Court rules against NSA phone data collection program

A federal court rules the government's secret collection of phone calls was likely unconstitutional. But with only three weeks left until the law ends, will it set a lasting precedent? 

AP Photo/Marco Garcia
Edward Snowden appears on a live video feed broadcast in February from Moscow at an event sponsored by ACLU Hawaii in Honolulu. The former National Security Agency worker, who leaked classified documents about government surveillance, called a decision this week that an NSA spy program was likely unconstitutional.

A federal judge on Monday reinstated an injunction against the National Security Agency’s wholesale collection of phone data, overturning an appellate court decision made three months earlier and handing a victory to privacy advocates.

Following the revelations of widespread surveillance brought forth by former NSA contractor Edward Snowden, conservative activist and lawyer Larry Klayman requested a federal court order prohibiting the spy agency from collecting his clients’ phone records.

Mr. Klayman's initial efforts were unsuccessful, but on Monday Judge Richard Leon of the United States District Court for the District of Columbia ruled the law was most likely unconstitutional and said the NSA must stop collecting his clients' information.

The catch, however, is that Leon’s decision has little practical use, as he noted in a 43-page opinion, because the ruling applies only to Klayman and his business, and because the law it calls into question is set to end in three weeks.

But it does reaffirm the legitimacy of claims made by privacy and civil rights activists, namely, that secret collection of data by the US government is unconstitutional.

"The fact remains that the indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person’s reasonable expectation of privacy," Leon wrote.

The crux of the two-year legal battle is that the decision comes before the USA Patriot Act ends on Nov. 29 and a new law, called the USA Freedom Act, takes its place.

The Freedom Act will halt the NSA’s collection of domestic records, allowing instead phone companies to hold call records and requiring the government to obtain a court order to view them when national security is proved to be at stake.

President George W. Bush’s administration began secretly collecting billions of phone records in 2001, ostensibly to stop terrorism. The measure allowed the NSA to record the number a person called and the time and duration of the call, but not the conversations themselves.

Yet the true scope of those efforts came to light only in 2013, when Mr. Snowden released classified documents detailing the spy program before fleeing to Russia.

The disclosure caused a public outcry, eventually leading to passage of the updated USA Freedom Act.

A greater question now is whether Judge Leon’s decision Monday will leave a lasting influence. To those concerned about government spying, it sets a legal precedent that may bolster other claims of privacy encroachments.

Jameel Jaffer, deputy legal director of the American Civil Liberties Union, told The Washington Post Leon’s opinion may challenge the collection of other forms of data, such as financial information and the locations of American citizens.

"The government should now commit to destroying the call records that it collected illegally, not just its database of raw data but any subsidiary databases that include query results," Jaffer said. "It should also reconsider the lawfulness of other bulk surveillance programs that have not been officially acknowledged."

Klayman lauded Leon’s decision as a pushback against government spying, but said that all records collected by the NSA should be destroyed.

"This is a great victory for the American people, it’s a great victory for justice,” he said. “This is one of the few judges in the country who has the guts to stand in the breach for the American people during a period of time where their government is running roughshod over them."

Snowden, who disclosed the spy program by releasing a secret memo to Verizon, called the decision a “victory” on Twitter.

The US Justice Department filed a request Monday for an emergency stay on Leon’s decision. 

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