Federal judge finds NSA phone metadata collection probably violates the Fourth Amendment

posted at 3:44 pm on December 16, 2013 by Allahpundit

The headline says “probably” because the ruling was on a preliminary injunction. He’ll issue a ruling on a permanent injunction after this order is inevitably appealed and he hears further arguments from both sides, assuming this issue doesn’t land before the Supreme Court first. A weird fact about the judge in this case: He was nominated to the bench by Dubya on … September 10, 2001. If you support the NSA metadata program, there’s the peg for the obligatory “September 10th mentality” talking point.

Rand Paul is, as you might expect, excited:

Here’s the opinion, which is worth skimming even if you’re not trained in law. Leon writes more accessibly than most judges, especially in the key section. Three issues in a case like this. One: Doesn’t the law say that only the FISA Court can hear a challenge to the NSA surveillance program? Leon’s a district court judge, not a FISA judge. How can he have jurisdiction? Two: Didn’t the Supreme Court rule once before, in the late 70s, that there’s no privacy interest in phone metadata? If that’s the case, how can there be a Fourth Amendment issue here? And three: Even if there’s a Fourth Amendment issue, why doesn’t mass metadata collection qualify as a “reasonable” search and seizure? It’s crucial to catching terrorists before they strike. Isn’t it?

On point one, Leon says it’s true — he has no jurisdiction to hear statutory challenges to a DOJ collection order. If you’re claiming that the DOJ exceeded the authority granted to it by Congress in issuing an order, that’s for the FISA Court to decide. Not only that, but American citizens don’t have standing to sue in the FISA Court. Only the recipient of a collection order, like Google or Verizon, can do that. In fact, because it’s illegal for the recipient to reveal the existence of a collection order, American citizens aren’t even supposed to know when a collection order is issued, let alone be able to sue the government. So no, there’s no jurisdiction for a federal district court to hear challenges to an order — on statutory grounds. But what if the challenge is on constitutional grounds, i.e. that an order violates the Fourth Amendment? District courts can hear those challenges, says Leon, because potential constitutional violations are of the utmost importance and Congress never went out of its way to say that that type of challenge should be heard only in the FISA Court too. Fourth Amendment questions are fair game for any lower-level federal court.

Fair enough. But what about point two, that the Supreme Court’s 1979 ruling in Smith v. Maryland established a precedent that metadata can be collected under the Fourth Amendment? Leon’s answer is the guts of the opinion; I suggest skipping to page 43 and reading it yourself. He gives four reasons why Smith shouldn’t control decisions on NSA surveillance. First, Smith dealt with a case where the cops wanted a particular defendant’s phone records for use at trial, not everyone’s phone records to store for years into the future. Second, Smith involved a discrete case, not a formal policy established by the federal government and telecom companies for continuous data-harvesting. Third, technology has advanced so wildly in this area since Smith was decided that it’s foolish to use it as controlling precedent. Mass data harvesting was science fiction in 1979 when “pen registers” were the hot legal topic of the day. Clearly, given concerns about scale and invasiveness, courts should consider the issue anew. And fourth, metadata can tell techies much more now than it could 34 years ago. You’re simply dealing with a more significant privacy interest today than you were in Smith. Result: Yes, this program implicates the Fourth Amendment.

The last chance for NSA defenders is to argue that, all of that aside, the searches are “reasonable” because they’re a speedy way for the feds to sniff out and interrupt terrorist attacks. Just one problem with that, says Leon: The feds have produced no evidence of it. He asked them to show him how the metadata program is helping to catch the bad guys where all other methods have failed and, so far at least, they can’t do it. That’s what triggers the preliminary injunction (which is momentarily stayed while the order is appealed). If the DOJ could show gangbusters results in stopping terrorism from the metadata program, that compelling state interest would affect the balance of equities in granting the injunction. As it is, because they’re offering nothing, Leon treats it as an easy call.

I’ll highlight one passage for you since you’re likely to hear Snowden fans mention it anyway:

l1l2l3

In other words, if not for Snowden’s leaks, this case literally might not have happened. Per the Supreme Court’s ruling in the Clapper case earlier this year, you can’t get standing before a federal judge by merely speculating that the NSA is targeting you. You need to show a real likelihood of concrete injury. Right, says Leon — and now, thanks to Snowden’s exposure of PRISM, we’ve got that. The leaker has changed the legal facts on the ground, enough so to make a Fourth Amendment lawsuit possible. That may be the single most tangible change in U.S. surveillance policy to have come from Snowden’s leaking, despite Obama’s endless promises about reform.

If nothing else, let’s hope this is harbinger of federal courts being more generous in stretching standing law to accommodate constitutional suits by private citizens. Separation of powers is fertile ground for that, as you already know.

Update: I tweaked the headline, which originally said the judge had halted metadata collection, because the order is stayed while the appeal plays out. If the feds lose the appeal — which may or may not reach the Supreme Court — then the program will be halted.


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… followed by “NSA promptly continues doing whatever they want.”

Midas on December 16, 2013 at 3:46 PM

What a fool.

unclesmrgol on December 16, 2013 at 3:47 PM

Not only that, but American citizens don’t have standing to sue in the FISA Court. Only the recipient of a collection order, like Google or Verizon, can do that. In fact, because it’s illegal for the recipient to reveal the existence of a collection order, American citizens aren’t even supposed to know when a collection order is issued, let alone be able to sue the government.

This has always bothered me. You can be the target of a secret search warrant but no one is allowed to tell you if they have been contacted, even a neighbor or a family member. If they do they are guilty of a felony worth 10+ years in prison with zero evidence required by the Federal Prosecutor to be shown in court.

Quis custodiet ipsos custodes?

Johnnyreb on December 16, 2013 at 3:52 PM

Audit in 3…2..1…

Gatsu on December 16, 2013 at 3:54 PM

American Stasi smack down. Snowdon FTW!!!

oceansidecon on December 16, 2013 at 3:54 PM

Finally!

De Oppresso Liber on December 16, 2013 at 3:57 PM

If the feds lose the appeal — which may or may not reach the Supreme Court — then the program will be halted.

OK Allah, enough comedy for today, get back to work.

antipc on December 16, 2013 at 3:59 PM

If the feds lose the appeal — which may or may not reach the Supreme Court — then the program will be halted.

Allah you are being extremely naïve if you think they will halt the program with a mere Federal Judge ruling against it.

Johnnyreb on December 16, 2013 at 4:00 PM

Federal judge finds NSA phone metadata collection probably violates the Fourth Amendment

… “probably?”

… followed by “NSA promptly continues doing whatever they want.”

Midas on December 16, 2013 at 3:46 PM

Pretty much. Even if the USSC was to say the NSA wasn’t allowed to do this, some other means would be found to do it.

Doomberg on December 16, 2013 at 4:01 PM

This will be overturned relatively easily by Scalia and company. Lots of precedence here.

jp on December 16, 2013 at 4:02 PM

NSA: “So …. whadda you gonna aboudit?”

Ace ODale on December 16, 2013 at 4:03 PM

… “probably?”

Or not at all, look at what Scalia and company have already said about what the 4th Amendment actually says and the Intent of it and the last 100yrs of phone tapping rulings.

This ruling is a joke.

jp on December 16, 2013 at 4:04 PM

FISA Courts are Constitutional?

forest on December 16, 2013 at 4:04 PM

I have no doubt that if SCOTUS does strike this down the NSA will disassemble the apparatus then reassemble it in a slightly different shape and go right back to assuring us it’s all for our own good, but for now this is still something to celebrate.

alchemist19 on December 16, 2013 at 4:07 PM

So the lawlessness of Snowden was necessary to expose the (probable) lawlessness of the NSA.

Is this a case of 2 wrongs does make a right?

Bitter Clinger on December 16, 2013 at 4:28 PM

This probably reflects the pendulum swining back from where it went after 9/11. If we get another truly devastating terror attack, it will probably swing back again.

As long as a warrant is needed for a human to access the content of communications I don’t have a problem with recording it for secured file but I know many here at HA don’t trust the controllers of the data repositorys.

KW64 on December 16, 2013 at 4:28 PM

So… is Snowden a bad guy, or a good guy?

Akzed on December 16, 2013 at 4:32 PM

The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.

The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction.

The case or controversy requirement demands that there be real adversity between two or more distinct entities each of which has a stake in the outcome of a dispute before a federal court can exercise any jurisdiction. Federal courts can only resolve disputes; they cannot rule with finality in the abstract or when approached by only one party. They can grant preliminary temporary relief to one party — in order to freeze the status quo and in anticipation of an adversarial contest on the merits — but they cannot rule when only one party is noticed and shows up.

This is precisely how the FISA court functions, and yet we have no merit-based ruling by the Supreme Court on its constitutionality. We do, however, have a solid indication as to how the court would rule. The seminal case in Supreme Court history is Marbury v. Madison (1803). In that case, Congress had attempted to give original jurisdiction to the Supreme Court to hear a dispute that the Constitution said could only be heard by that court in an appellate setting. In denying Marbury’s meritorious claim, the court held definitively that Congress cannot alter the Constitution’s requirements that serve as a precondition for invoking the jurisdiction of a federal court.

But this is just what Congress did with FISA. In the FISA court, only the government appears, seeking a generalized search warrant without regard to the facts of any specific case. There is no case or controversy in the constitutional sense as there is no adversariness: No plaintiff is suing a defendant, and no defendant is being prosecuted by the government. Absent adversariness, the federal courts have no jurisdiction to do anything.

This flawed system is complicated even further by the fact that should the FISA court deny an application for a general warrant because it believes the government’s procedures to be illegal or unconstitutional, those court orders are non-binding and the government has ignored them. Unenforceable rulings that may be disregarded by another branch of the government are not judicial decisions at all, but impermissible advisory opinions prohibited by the Framers.

When a FISA court judge rules that the NSA has the constitutional power to spy on Americans about whom it has no evidence of wrongdoing, no one was in court to dispute it — the court is without authority to hear the matter, and thus the ruling is meaningless.

By altering the constitutionally mandated requirement of the existence of a case or controversy before the jurisdiction of the federal courts may be invoked, Congress has lessened the protection of the right to be left alone that the Framers intentionally sought to enshrine. But don’t expect the government to wake up to this threat to our freedom. Its consistent behavior has demonstrated that it doesn’t care whether it violates the Constitution. Instead, expect the president’s secret agents and the politicians who support them to hide their wrongdoing behind more layers of secrecy.

roflmmfao

donabernathy on December 16, 2013 at 4:36 PM

BREAKING:

U.S. District Court Judge Richard Leon arrested today in what may turn out to be the largest kiddie-porn scandal ever to be uncovered in the US.

BobMbx on December 16, 2013 at 4:36 PM

Actually, I would expect a big government statist like Ryan to be disappointed by this ruling.

besser tot als rot on December 16, 2013 at 4:39 PM

Ok so overreaching government agency violated the constitution…..oh well. It jus a piece of paper. No big deal, right? Meanwhile they’d throw my butt in jail in a New York minute if I did something remotely wrong.

jaywemm on December 16, 2013 at 4:39 PM

This has always bothered me. You can be the target of a secret search warrant but no one is allowed to tell you if they have been contacted, even a neighbor or a family member. If they do they are guilty of a felony worth 10+ years in prison with zero evidence required by the Federal Prosecutor to be shown in court.

Quis custodiet ipsos custodes?

Johnnyreb on December 16, 2013 at 3:52 PM

That is the definition of terrorism.

All of this smoke and mirrors BS has not stopped a single attack on US soil. Not one.

tetriskid on December 16, 2013 at 4:39 PM

Snowden a good guy for exposing domestic spying; a bad guy for exposing foreign spying techniques.

besser tot als rot on December 16, 2013 at 4:40 PM

As long as a warrant is needed for a human to access the content of communications I don’t have a problem with recording it for secured file but I know many here at HA don’t trust the controllers of the data repositorys.

KW64 on December 16, 2013 at 4:28 PM

A secure people should never fear its government. A good government is one that fears its citizens.

Keep in mind that none of the Founding Fathers ever said or suggested that the people, us, should trust the government. In fact, many went out out their way to say the opposite.

That is what the Bill of Rights is for. To constrain, not enable “the man”.

BobMbx on December 16, 2013 at 4:42 PM

This has always bothered me. You can be the target of a secret search warrant but no one is allowed to tell you if they have been contacted, even a neighbor or a family member. If they do they are guilty of a felony worth 10+ years in prison with zero evidence required by the Federal Prosecutor to be shown in court.

Quis custodiet ipsos custodes?

Johnnyreb on December 16, 2013 at 3:52 PM

You can also be whisked away to GITMO indefinitely, and held without notification to anyone.

BobMbx on December 16, 2013 at 4:43 PM

I have no doubt that if SCOTUS does strike this down the NSA will disassemble the apparatus then reassemble it in a slightly different shape and go right back to assuring us it’s all for our own good, but for now this is still something to celebrate.

alchemist19 on December 16, 2013 at 4:07 PM

FISA doesn’t think that they’ve exceeded the scope of their mandate. NSA doesn’t see itself as the bad guys. Both FISA and NSA don’t think that they violated the trust of the American public. Their leaders lied to Congress for the “right reasons.” In short they see themselves as honorable public servants.

A good portion of the American public would disagree. I am part of that group. Snowden’s no patriot but he did expose things that needed to be exposed.

Happy Nomad on December 16, 2013 at 4:46 PM

Snowden’s no patriot but he did expose things that needed to be exposed.

Happy Nomad on December 16, 2013 at 4:46 PM

Sorta like Jack Sparrow, then?

A pirate yes, but for all the right reasons.

BobMbx on December 16, 2013 at 4:54 PM

Sorta like Jack Sparrow, then?

A pirate yes, but for all the right reasons.

BobMbx on December 16, 2013 at 4:54 PM

I’d agree with the pirate part. I’m not so sure what Snowden’s reasons are but he’s disclosed methods which is never right when it comes to intelligence.

Happy Nomad on December 16, 2013 at 4:57 PM

I’d agree with the pirate part. I’m not so sure what Snowden’s reasons are but he’s disclosed methods which is never right when it comes to intelligence.

Happy Nomad on December 16, 2013 at 4:57 PM

I agree with the earlier comment that Snowden is a hero for revealing domestic spying, and a bad guy for revealing spying on foreign targets.

Clark1 on December 16, 2013 at 5:29 PM

As long as a warrant is needed for a human to access the content of communications I don’t have a problem with recording it for secured file but I know many here at HA don’t trust the controllers of the data repositorys.

As long as they only record and store your information, I don’t have a problem with it either. You can give them consent to spy and collect data on you for the rest of your life but you can’t give them consent to do it to the rest of us. That whole 4th amendment and rule of law thingy gets in the way of the government spying on the people it serves without due process. Since the government is unable to provide probable cause for collecting data on every single American, they can back the hell off and start obeying the law.

Wendya on December 16, 2013 at 5:34 PM

Good. Maybe there’s hope for reigning in some of this out-of-control crap.

But I doubt it.

petefrt on December 16, 2013 at 5:43 PM

President Snow: Seneca… why do you think we have a winner?

Seneca Crane: [frowns] What do you mean?

President Snow: I mean, why do we have a winner? I mean, if we just wanted to intimidate the districts, why not round up twenty-four at random and execute them all at once? It would be a lot faster. [Seneca just stares, confused]

President Snow: Hope.

Seneca Crane: Hope?

President Snow: Hope. It is the only thing stronger than fear. A little hope is effective. A lot of hope is dangerous. Spark is fine, as long as it’s contained.

Seneca Crane: So…?

President Snow: So, contain it.

Murphy9 on December 16, 2013 at 5:46 PM

So the lawlessness of Snowden was necessary to expose the (probable) lawlessness of the NSA. Is this a case of 2 wrongs does make a right? Bitter Clinger on December 16, 2013 at 4:28 PM

“A law violating a constitution established by the people themselves, would be considered by the judges as null & void.” -James Madison

He was an optimist.

Akzed on December 16, 2013 at 6:50 PM

As long as a warrant is needed for a human to access the content of communications I don’t have a problem with recording it for secured file but I know many here at HA don’t trust the controllers of the data repositorys.

So they get a warrant for Mr A and listen in on all of his conversations. They hear Mr B and him talking about their hatred of tyranny. Under the definition of “terrorist” now operative in this administration (white Christian prolifer, maybe a veteran, wants smaller govt and lower taxes), they got you both.

Even if they never actually spoke, but Mr A called Mr B several times in the evenings not knowing he works 3-11, the metadata has him dead to rights as an associate of a terrorist. And under NDAA, they can grab him off the street and that’s that.

If this is news to you, please do some research.

Akzed on December 16, 2013 at 6:57 PM

I fear most are falling for the Snowden/Greenwald/Putin BS.

Snowden has been attempting to establish “whistle-blower” status ONLY as a clever way to cover-up for his traitorous spying on behalf of our enemies.

Snowden stole way more files than he needed to prove NSA overreach.

WHY? Someone tell me why.

And then Snowden went to China and and then Russia – in an attempt to get to Cuba. These are not libertarian states, and they all are antagonistic toward the USA and our allies. All benefited from the leaks, too. They may have benefited even more from leaks we know nothing about – yet.

And don’t forget, that Snowden was red-flagged as a security risk by the CIA in 2009 – way before he had access to NSA overreach.

Therefore, let’s not treat him as a libertarian hero.

Remember Daniel Ellsberg? Ellsberg did not go to THE NATION; Ellsberg went to The NYTimes. And never fled, certainly not to the USSR.

Snowden went to Glenn Greenwald and The Guardian – both very left-wing and both long-time antagonists to USA national security and to our military.

If Snowden was a true whistle-blower, then Snowden could have gone to Senators Wyden, Paul or Cruz, and been protected by laws written specifically to protect whistle-blowers.

REPEAT: let’s not treat Snowden as a whistle-blower – and certainly not a libertarian hero.

Snowden deserves indictment as a traitor and execution, not amnesty.

reliapundit on December 16, 2013 at 9:50 PM

Thing is, it wasn’t an NSA program. It was an FBI program. The FISA order I saw published came from FBI, they were requesting the data be turned over to NSA (for analysis by their tools?) but the request came from FBI. Same with the Prism documents. If you look carefully at the block diagrams, you will see all data goes through FBI and requests for access to providers also come from FBI.

crosspatch on December 17, 2013 at 2:16 AM

The mass data collection is just another govt program that doesn’t produce the results that are being proclaimed by our betters. What big plot has it stopped since they’ve been using it? It couldn’t even stop a couple of mopes in Boston even after being alerted by a foreign secret service. Another example of a govt throwing money at something to make it work and it doesn’t.

Kissmygrits on December 17, 2013 at 9:14 AM

In other news, Godzilla “probably” a lizard.

The Schaef on December 17, 2013 at 10:08 AM