December 16, 2013

Judge slaps down NSA phone snooping — will Obama listen?

Calling it "almost Orwellian," Judge Richard J. Leon of the District of Columbia has given an official slapdown to the National Security Agency's snooping on domestic phone calls.
“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,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
Take that, Barack Obama, Keith Alexander, James Clapper et al.

Judge Leon stayed his injunction ordering the NSA to stop the snooping at issue in the case for six months, allowing time for appeal. Which will certainly happen.

Now, let's hope it holds up through the appeals process. And that, if it does, Obama actually responds in the appropriate way. Because, like Andy Jackson vs. John Marshall over the Cherokee Removal, I'm seriously not sure he will.

No, that's not hyperbole. Should Judge Leon's ruling hold up all the way through the Supreme Court, I'm not sure President Obama will fully obey it.

And, given the bipartisan War on Terra establishment, I'm not sure a majority of Congress will challenge him on that.

That said, this is just an injunction. But, it's the first time that the spying-industrial complex has lost in court. Here's more from Judge Leon:
“The question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval,” he wrote. “For the many reasons set forth above, it is significantly likely that on that day, I will answer that question in plaintiffs’ favor.”
Bingo.

That said, given that this just an injunction, the full process might not wind down until near the time Dear Leader leaves office.

Here's Leon's reasoning, which, as the Times notes, rejects previous claims of the Foreign Intelligence Surveillance Court as to what the NSA can "vacuum":
In laying out his conclusion, Judge Leon rejected the Obama administration’s argument that a 1979 case, Smith v. Maryland, meant that there is no Fourth Amendment protections for call metadata — information like the numbers called and received and the date, time and duration of the call, but not the content.

The Foreign Intelligence Surveillance Court, which secretly approved the N.S.A. program after hearing arguments from only the Justice Department, has maintained that the 1979 decision is a controlling precedent that shields the program from Fourth Amendment review. But Judge Leon said the scope of the program and the way people use phones today distinguishes the N.S.A. data collection from the type at issue in that case.
It's going to be tough sledding to have Leon's reasoning stand up, per what Smith v Maryland says. But, it's just possible. A pen register recorded much less than today's phone metadata. And, that doesn't even touch on things like using GPS tracking to tie phone calls, duration, etc., to caller location.

At least we have "some hope." And, Leon's ruling will force SCOTUS, eventually, to consider modernizing its thought and rulings in this area in general.

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