It’s in part because of this woeful showing that Judge Leon granted the motion of the plaintiffs—activists Larry Klayman and Charles Strange—for a preliminary injunction. That mean he thinks they’ll likely win once the case is fully presented, by both sides, in later proceedings. But Leon also stayed his order, which means it won’t go into effect while the government appeals.
The second major question Leon tackled is whether Klayman, Strange, and the rest of us have a reasonable expectation of privacy to our metadata. The government says no, based a much-cited 1979 ruling in which the Supreme Court said that once you voluntarily give the phone company information about who you’re calling, you have to accept the possibility that the government may search it. Leon says, essentially, that it’s time to bury that old case, because in 1979, the Supreme Court could not have “have imagined how the citizens of 2013 would interact with their phones.” He continues, “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.” He adds this great apoplectic line: “And I might add, there is the very real prospect that the program will go on for as along as America is combatting terrorism, which realistically could be forever!”
Leon also points out that now that everyone has a cellphone, the stream of metadata each person produces “reflects a wealth of detail about her familiar, political, professional, religious, and sexual associations.” This is a quote from Supreme Court Justice Sonia Sotomayor, from the 2012 case in which the Supreme Court said the government couldn’t put a GPS tracker on a car without a search warrant. “Records that once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic—a vibrant and constantly updating picture of the person’s life,” Leon continues. He thinks this means we have a “greater expectation” of privacy than people did in 1979. That’s the most debatable proposition in his opinion, I’d say, but it’s refreshing to hear a federal judge voice it.
Also welcome and bracing: Judge Leon’s invocation of the Constitution’s requirement, via the Fourth Amendment’s protection against unreasonable search and seizure (the basis of his ruling), that “a neutral and detached authority” must stand between law enforcement and the public to referee disputes over surveillance programs. The FISA court is no substitute for regular judicial review in an open courtroom. That’s what Judge Leon has now given us. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection an retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” he says.
Thank you, Judge Leon, for the wake-up call. And also for giving me reason to question, once again, the Obama administration’s insistence on treating Edward Snowden, as a criminal. Yes, he leaked everything on the farm. But without him, we’d never have this lawsuit or the alarm bells it joined in sounding. “If someone discloses a secret govt program that a Federal Court rules violates the Constitution, that person’s a whistleblower, right?” Greenwald tweeted Monday. Yes—that should be about right.