Today the District Court Judge for the District of Columbia, Richard J. Leon, appointed in 2002 by George W. Bush, ruled that bulk NSA metadata collection is a violation of the Fourth Amendment of Constitution. The plaintiffs who brought the case against Obama, NSA, Verizon and other parties,
Larry Klayman, a conservative lawyer, and Charles Strange, father of a cryptologist killed in Afghanistan when his helicopter was shot down in 2011. His son worked for the NSA and carried out support work for Navy Seal Team Six, the elite force that killed Osama bin Laden. Guardian, NSA phone surveillance program likely unconstitutional, federal judge rules
Not just once the judge invoked parallel to Orwell's description of totalitarian states. For example, beginning his analysis with "Supreme Court's landmark opinion in Smith v. Maryland, 442 U.S. 735 (1979)", judge wrote
Third, the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. (emphasis supplied) MEMORANDUM OPINION December 16,2013 [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]
The judge not only very convincingly demonstrated fundamental difference between limited collection of the metadata and a database that contains bulk metadata of telephone and internet communications of hundreds of millions of people that is constantly updated, but clearly showed how intrusive it is and that it violates the Fourth Amendment. The judge, however, ruled
in light of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal.
The judge also did not address plaintiff's claims that NSA violated their rights under First and Fifth Amendments noting
Because I ultimately find that plaintiffs have made a sufficient showing to merit injunctive relief on their Fourth Amendment claim, I do not reach their other constitutional claims under the First and Fifth Amendments
Metaphorically speaking the ball is now in the Government's court. Let's see what the Government will pull out for the appeal, but it is clear now that it has fewer supporters that most people have thought.