DC judge rips into the NSA over mass surveillance

In an extraordinary opinion, DC judge Richard Leon has laid into the NSA and US government for its bulk collection of phone records, and issued an injunction banning the collection of metadata on several individuals.

Railing against arguments made by the government to dismiss the case, claims it needed more time to make changes, and the argument that the USA Freedom Act makes the case moot, Leon's opinion [PDF] is unequivocal that the program breaks the US Constitution and infringes citizens' rights.

"Plaintiffs have demonstrated that they are substantially likely to succeed on their claim that the Government is actively violating the rights guaranteed to them by the Fourth Amendment," he notes, adding later, "Plaintiffs will likely succeed in showing that the Program is indeed an unreasonable search ... the public interest weighs heavily in their favor."

As a result, Leon grants some of the plaintiffs an injunction that bars the US government from collecting their data, including metadata, and requires any data that the government already holds on them to be segregated.

He was, however, forced to deny the same actions for the individuals that originally brought the case as a result of semantic arguments made by the government that he complained bitterly about in the decision, highlighting that the courts had to use their "common sense" when making decisions.

Quick history

The case Klayman v Obama was one of the first lawsuits brought against the NSA mass surveillance program when it was revealed by Edward Snowden in 2013. It quickly proved to be one of its most significant when Judge Leon ruled the bulk collection of phone records unconstitutional.

Leon stayed his opinion immediately due to the certainty of an appeal. But, he notes, "I assumed that the appeal would proceed expeditiously, especially considering that the USA Patriot Act ... was due to expire on June 1, 2015 – a mere eighteen months later. For reasons unknown to me, it did not."

In a desperate bid to protect the surveillance program, the US government effectively took over the process. First, President Obama issued a series of orders that added some privacy protections to how the NSA used its vast database.

Then Congress reviewed the Patriot Act, which had been used to justify the bulk collection of records, and produced the Freedom Act, which largely brought an end to the program but gave the NSA six months to wind it down.

Meanwhile, Leon's case was effectively put on hold – something that he clearly did not appreciate – only returning to him after the Appeals Court said the plaintiffs did not have legal standing, nearly two years later.

By the time it came back to Leon, the US government was arguing that the changes effectively made the case worthless. Judge Leon is having none of it however, calling that approach a "bootstrap argument."

Instead of providing this Court with specific examples of the Program's success, the Government makes the bootstrap argument that the enactment of the USA Freedom Act confirms the importance of this Program to meeting the Government's special needs. Please!... I must still determine whether the Program is reasonably effective in accomplishing its goals ... This is a conclusion I simply cannot reach given the continuing lack of evidence that the Program has ever actually been successful as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.

He also dismisses the argument that Congress has authorized the continuation of the current program in the Freedom Act.

The Government goes one step further by arguing that ... requires this Court to defer to Congress's 'determination' that continuing the Program during the 180-day transition period is the best way to protect the public's interest. Not quite! Congress did not explicitly authorize a continuation of the Program. Rather, it artfully crafted a starting date for the prohibition of the Program that would enable the Government to confidentially seek FISC authorization to continue the Program for the 180-day transition period and free the Members of Congress from having to vote for an explicit extension of the Program.

Leon is particularly irritated with the government's argument – in part accepted by other courts – that since there was not explicit mention of Verizon consumer service as being a part of the bulk collection program, that the original plaintiffs did not have standing. Only Verizon's business services program was included in the leaked documents that revealed the spying program in the first place.

In other words, because people don't have the full details of the secret spy program they can't argue that they were included in the secret spying program. Even when the case was extended to included plaintiffs that definitely did use Verizon's business services, the government then argued that the plaintiffs had no evidence that their particular metadata has been used.

"The Government protests that there is 'no evidence that the NSA has accessed records of [plaintiffs'] calls as a result of queries made under the 'reasonable, articulable suspicion' standard or otherwise'," Leon notes. "To them, it is pure 'conjecture' that 'records of Plaintiffs' calls have been' or 'will be' reviewed 'during the remaining two months of the Section 215 program.' I wholeheartedly disagree."

Reality

Of course Leon's opinion – which itself is likely to be challenged – can only have a very limited impact at this stage, given the other court cases and the ending of the current program. In that sense, he was free to use the decision as a way to inject his frustrations with the way the US government has manipulated the courts and Congress to keep the spying programs largely in place and avoid a ruling of unconstitutionality.

He explicitly recognizes the reality of the situation in his conclusion, noting that this is not going to be the last time this problem appears.

"With the Government's authority to operate the Bulk Telephony Metadata Program quickly coming to an end, this case is perhaps the last chapter in the Judiciary's evaluation of this particular Program's compatibility with the Constitution," he notes. "It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry.

"Although this Court appreciates the zealousness with which the Government seeks to protect the citizens of our Nation, that same Government bears just as great a responsibility to protect the individual liberties of those very citizens."

In that sense, the opinion may serve as a future template for judges and plaintiffs the next time that "over zealous" security officials break the US Constitution in an effort to keep tabs on everyone. ®