NSA Gets Slapped Down in Federal Court in Limited Order Against Bulk Collection

This article was featured in our weekly newsletter, the Liberator Online. To receive it in your inbox, sign up here. U.S. District Court Judge Richard Leon blasted the National Security Agency’s bulk collection of Americans’ phone records on Monday in a scathing opinion. The controversial intelligence agency is, however, just weeks away from launching its new system authorized under the USA Freedom Act, which passed Congress in June, and he order applies to only to Verizon Business Networks Services customers. “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 wrote in his order to shutter the NSA’s so-called “all calls” program. The federal judge took great lengths to rebut the federal governments arguments to keep the program in place. This is the second time Leon, an appointee of President George W. Bush who serves on the U.S. District Court for the District of Columbia, has excoriated the NSA’s bulk metadata collection program. In December 2013, he ruled that the program was unconstitutional and called it “Orwellian.” Leon stayed his order. This time around, however, he declined to do so again. “In my December 2013 Opinion, I stayed my order pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised,” Leon explained. “[B]ecause it has been almost two years since I first found the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm, I will not do so today.” The order has only a limited effect. The USA Freedom Act allowed the NSA a 180-day transition period to develop a new program to collect relevant metadata. This period ends in November. Reuters reported on Monday that the new program would become operational on November 29. Under the new program, according to reports around the time of the passage of the USA Freedom Act, phone companies will retain the data of their customers, turning over only if the government officials produce a warrant for a specific person or persons. Still, privacy advocates praised Leon’s order. “ Judge Leon’s opinion and his refutation of the government’s arguments, which are almost identical to the government’s arguments in other mass surveillance cases, should be broadly influential in ongoing and future challenges to the NSA’s suspicion-less spying,” wrote David Greene of the Electronic Frontier Foundation in a blog post on Monday. While the order applies to only two specific consumers, its impact is still important in the fight to curtail the use of general warrants. The arbitrary use of general warrants is what sparked the revolutionary spirit of the colonists against Great Britain. Leon’s ruling is proof that spirit is still alive.