A federal judge has blocked the NSA from collecting data on a law firm under the agency’s phone records surveillance program.The decision comes about twenty days before the NSA is supposed to follow the USA FREEDOM Act and quit storing domestic phone call records in bulk.
Richard Leon, a judge for the U.S. District Court for the District of Columbia, found [PDF] J.J. Little and J.J. Little & Associates, P.C., had proven they had standing to sue the government for violating their Fourth Amendment rights by conducting an unreasonable search of their call records because they are Verizon Business Network Services (VBNS) subscribers.
In his decision, Leon affirmed how NSA’s searches were a “substantial intrusion on their privacy.”
“Because the government has acknowledged that VBNS subscribers’ call records were collected during a three-month window in which the Little plaintiffs were themselves VBNS subscribers, barring some unimaginable circumstances, it is overwhelmingly likely that their telephone metadata was indeed warehoused by the NSA,” Leon determined.
This is, as Leon pointed out, because “every single time the NSA runs a query to, for example, ‘detect foreign identifiers associated with a foreign terrorist organization calling into the U.S.,’ it must ‘analyze metadata for every phone number in the database by comparing the foreign target number against all of the stored call records.'” The NSA does this “to determine which U.S. phones, if any, have interacted with the target number.”
The government claimed VBNS might no longer be a participant in the phone records surveillance program. Leon rejected this position as being “fundamentally at odds with its ever-escalating concerns of terrorist threats.”
“By the government’s own admission, it is marshaling all available investigative tools to combat a threat it believes to be [at least] as menacing as it was in 2013,” Leon argued. “It defies common sense for defendants to argue, as they apparently do the government has chosen to omit from this breathtakingly broad metadata collection program a provide that the government surveilled in the past and that, presumably, has the infrastructure to continue assisting in that surveillance. In fact, it would make no sense whatsoever for the government to use all available tools except VBNS call data to accomplish its putative goals.”
In December 2013, Leon ruled the NSA phone records surveillance program infringed upon privacy and issued a preliminary injunction. He immediately issued a stay because he expected the government would appeal, which the government did.
Though the case was sent back to the district court, the U.S. Court of Appeals for the District of Columbia Circuit took a significant amount of time before issuing a decision and vacated Leon’s preliminary injunction in August. The appeals court also avoided key constitutional issues raised by Leon’s ruling.
Leon reacted, “Left undecided—indeed wholly untouched—was the question of whether a program that indiscriminately collects citizens’ telephone metadata constitutes an unconstitutional search under the Fourth Amendment.”
Furthermore, Leon suggested the USA Freedom Act, which was passed to make the program more defensible by government officials, may not have corrected the constitutional issues inherent in the phone records surveillance program.
“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 maintained. He contended the changes in the law would not affect how the searches of data had been unreasonable under the Fourth Amendment.
Leon also assessed the searches, which will continue under the USA FREEDOM Act.
…To say the least, the searches in this case lack most of the hallmarks of minimal intrusion. It is not, as an initial matter, a discrete or targeted incursion. To the contrary, it is a sweeping, and truly astounding program that targets millions of Americans arbitrarily and indiscriminately. To be sure, by designing a program that eliminates the the need for agents to use discretion, the government has reduced to zero the likelihood that metadata will be collected in a discriminatory fashion—a characteristic that the Supreme Court has suggested minimizes the privacy intrusion…
Leon raised alarm at the fact that the government would suggest the Constitution favors “such extreme measures” and make no attempt whatsoever to tailor the program.
In other words, Leon raised arguments that Little and his law firm could bring against the government even after the NSA changes its program to follow the USA Freedom Act because the changes still permit unauthorized searches of Americans’ phone records.
Additionally, the government insisted if Leon ruled against the government it would create an “intelligence gap.” However, the government still has not provided a “single instance in which telephone metadata analysis actually stopped an imminent attack or otherwise aided the government in achieving any time-sensitive objective. It has provided no specific information to substantiate the argument about how this ruling will create an ‘intelligence gap.'”