Thanks to a leak of classified documents by former NSA contractor Edward Snowden, we learned this summer that Verizon (and presumably other phone companies) were regularly handing over to the federal government metadata for all of their customers. Metadata being a fancy word for lists of all the phone calls made, which numbers were calling which numbers and how long those conversations lasted. While jaws were still on the floor regarding the scope of such collection, which would include hundreds of millions of people (including you, unless you don’t have a phone), two Verizon subscribers got to work drafting up a lawsuit. Larry Klayman, a conservative activist, and Charles Strange, father of a Navy SEAL who died in Afghanistan, sued the federal government as well as Verizon, saying that the phone company handing over their information to the feds was a violation of the U.S. Constitution and an “outrageous” breach of privacy. In a scathing opinion out of the District Court of D.C. Monday, federal judge Richard Leon agreed with them, saying the phone metadata collection program is “almost certainly” unconstitutional.
Calling the wholesale download of America’s phonecall activity “Orwellian,” Judge Leon writes that the NSA’s collection and querying efforts “likely violate the Fourth Amendment.” This is a huge deal. This is a classified program that has been in place for seven years that has been collecting information about most anyone with a phone, reviewed only by judges from a secret surveillance court. Brought into the open only because of documents leaked by Edward Snowden, a federal judge now says on an initial review that it is likely unconstitutional.
“To my knowledge, no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the Government urges me to be the first non-[secret surveillance court] judge to sanction such a dragnet,” writes Leon, who was particularly vexed that those people whose information is collected have no recourse to challenge that collection. Only phone companies knew this was happening and could object to it. “While Congress has great latitude to create statutory schemes like FISA [the Foreign Intelligence Surveillance Act], it may not hang a cloak of secrecy over the Constitution.”
It’s hard now to argue that Snowden is not a whistleblower.
Leon, a George Bush appointee to the federal bench in 2001, ruled that Klayman and Strange should have their metadata excised from the database and that the NSA should stop collecting their phone information moving forward. But he also put a stay on his own opinion to give the government time to appeal.
“In the short run it means the surveillance continues while the government appeals to the D.C. Circuit,” says Hanni Fakhoury, a lawyer at EFF. “The appeal would go to the D.C. Circuit, a good place for this case.”
Fakhoury points out the D.C. Circuit established the ground-breaking privacy case U.S. v. Jones, which eventually went to the Supreme Court and established our right to be free of warrantless GPS trackers on our cars.
Throughout Leon’s opinion, it’s obvious that he was horrified by what he learned from the Snowden leaks. The ACLU previously tried to wage a legal battle against this kind of dragnet phone surveillance, but its case was thrown out because it couldn’t prove it had been surveilled. The documents leaked by Snowden, which led the federal government to release other opinions about its phone collection program, have changed that.
“It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government,” writes Leon. Klayman and Strange’s suit against the government and against Verizon asked for $3 billion in damages. Leon isn’t ruling on that yet, but Verizon did make clear that it wants out of this battle, filing for a dismissal based on the fact that it can’t be held liable for complying with a court order.
Leon stuck to the constitutional issues, and lacerated the government’s arguments in the case. The government mainly relied on the precedent from a 1979 Supreme Court case that found that police could get a phone company to tell it what numbers a person had dialed on their phone without violating the Fourth Amendment because people did not have a “legitimate expectation of privacy” over information they handed over to a third party. This is called the “third party doctrine” in legal circles, and given how much information we now keep with third parties (from our phone information to our email) some big legal dogs are starting to chew on it.
“Put simply, people in 2013 have an entirely different relationship with phones than they did thiry-four years ago,” writes Leon. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”
Just like General Keith Alexander did in a puff piece on 60 Minutes Sunday night, the government argued that it needs quick access to these records in order to hunt down terrorists quickly. Leon was skeptical saying that he had not been presented with evidence showing that the telephony metadata was “immediately useful or that they prevented an impending attack,” and that the government could always get the data through other constitutional ways.
“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,” writes Leon, who hints at the answer to the question: “I have little doubt that the author of our Consitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by the gradual and silent encroachments by those in power,’ would be aghast.”