District Court Judge's Ruling Gives Glimmer Of Hope The Constitution's Bill Of Rights Still Has Some Viability

Legal scholars learned in Fourth Amendment jurisprudence welcomed a decision by D.C. District Court Judge Richard Leon today in Klayman et al. v. Obama, et al. holding that the NSA's bulk collection and analysis of telephonic metadata is an unreasonable search and seizure. Judge Leon stayed a preliminary injunction pending a certain appeal by the government to the D.C. Court of Appeals.

While many would agree with Judge Leon's opinion, the ruling is particularly noteworthy because of the identity of the plaintiff who brought this case (not the ACLU) and the conservative background of the judge who decided it. The lead plaintiff, Judicial Watch's Larry Klayman, is a staunch conservative activist viewed as a pariah by liberals. Judge Leon is a conservative jurist nominated to the federal bench by former President George W. Bush on the day before 9/11. He's a former classmate of Justice Clarence Thomas at the College of the Holy Cross, earned his LLM degree from Harvard, taught law at St. John's University School of Law, and worked as a senior attorney in the Reagan Justice Department before working on the Select House Committee that investigated the Iran-Contra affair. He also worked for two major D.C. law firms immediately before his appointment to the federal bench.

The government argued that the Supreme Court's 1979 ruling in Smith v. Maryland squarely permitted the NSA's bulk collection of telephonic metadata.  In that case, police had installed a pen register without obtaining a warrant, which revealed that the suspect had placed a phone call to a robbery victim on one occasion. The Supreme Court held that the defendant had no reasonable expectation of privacy with respect to the numbers dialed from his telephone because he voluntarily transmitted that information to the telephone company which maintained it as a business record. Judge Leon noted that the Supreme Court last year in U.S. v. Jones held that the placement of a GPS tracking device on a vehicle to track its movement for nearly a month without a warrant violated the defendant's reasonable expectation of privacy despite the fact that the Court had previously ruled in 1983 that a tracking beeper placed on a vehicle did not constitute a search within the meaning of the Fourth Amendment. The Court distinguished the earlier case from the Jones decision because it was "a short-range, short-term tracking device" as opposed to "constant, month-long surveillance achieved with the GPS device attached to Jones' car."

Judge Leon noted that the NSA bulk data collection of telephonic metadata involved "the creation of a historical data base containing five years' worth of data" with the "very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!" "[T]he almost-Orwellian technology that allows the Government to store and analyze the phone data of every telephone user in the United States is unlike anything that could have been conceived in 1979," Leon reasoned. "The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best in 1979, the stuff of science fiction."

Judge Leon also persuasively distinguished 1979 as a time when people still relied on single land line phones in their home as opposed to today when multiple family members within a household carry cell phones everywhere they go that serve multiple purposes beyond simple use as a telephone. "Thirty years ago, streets were lined with pay phones. Thirty years ago, when people wanted to send "text messages," they wrote letters and attached postage stamps." He concluded, "Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago . . . This rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person's phone 'reflects a wealth of detail about her familial, political, professional, religious and sexual associations.'"