A Bush-Appointed Judge Eviscerates Part of the NSA's Phone Surveillance

What's to come?
Dec. 16 2013 6:58 PM

Snap Out of It

If this judge doesn’t buy the legal basis for the NSA’s intrusive phone snooping, no one should.

Demonstrators hold placards supporting former US intelligence analyst Edward Snowden during a protest against government surveillance on October 26, 2013 in Washington, DC.
Demonstrators hold placards supporting former U.S. intelligence analyst Edward Snowden on Oct. 26, 2013 in Washington, D.C. On Monday, Judge Richard Leon’s ruled that the NSA is probably violating the Constitution.

Mandel Ngan/AFP/Getty Images

If you have been lulled into a state of somnolence about former government contractor Edward Snowden’s revelations that the government is collecting records of every phone call you’ve made, for years, it’s time to snap out of it. That’s the bracing effect of Judge Richard Leon’s Monday ruling that the National Security Agency is probably violating the Constitution with its 7-year-old program for collecting “telephony metadata”—the euphonic phrase for whom you call and whom you receive calls from.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

In June, when we learned about this NSA program in the first wave of news about the huge trove of documents that Snowden leaked, some responses were too dismissive, saying that what the NSA is doing isn’t all that invasive, since this isn’t about the contents of phone calls, and in any case, collecting and trawling through all that metadata is a crucial tool for thwarting imminent terrorist attacks. Judge Leon didn’t accept the first claim and has eviscerated the second one. This is what judicial review is all about—checking government power and calling government bullshit. And it comes today from a judge appointed by President George W. Bush who has previously ruled in favor of “expansive government power,” as Glenn Greenwald, breaker of much of the Snowden news, puts it. In other words, if Judge Leon didn’t buy the government’s argument about why it needs to collect and keep all this metadata, other judges—and many of the rest of us—may see it the same way.

Let’s start with what the government is doing. At issue is the part of the Patriot Act, building on the Foreign Intelligence Surveillance Act, that allows the government to collect an enormous trove of phone call metadata, and then query it based on an “identifier” phone number called a “seed.” A seed is a number associated with terrorist activity, based on a reasonable and articulable suspicion. Sounds OK so far. But wait: Once you’re an NSA agent with a seed, you can analyze all the numbers within three hops from that seed—meaning the numbers the seed called and received calls from, and the numbers connected to those numbers. Judge Leon points out that if one seed calls just 100 numbers in five years, and each of the numbers in the next two hops also connects with 100 numbers, the NSA can trawl through the metadata for 1 million phone numbers. And that’s got to be a low-ball estimate, since it doesn’t take into account the possibility that someone used one of those phone numbers to order from, say, Domino’s Pizza, allowing the NSA to vacuum up zillions of other callers. There were fewer than 300 seeds in 2012, according to the NSA. Still, the data collection ratchets up exponentially so fast that we have to be talking about a database with everyone’s metadata. (The ACLU created a GIF that shows how quickly “three hops” can add up.) The NSA keeps the information for up to five years. And its agents can analyze the metadata for every number they have without going back to court, or in any other way showing individualized suspicion, other than supposedly follow its own rules. Which we know it has violated multiple times, based on orders of the reviewing court established by FISA (orders that were declassified only after Snowden blew the lid off all of this last summer). In case you are wondering, Judge Leon’s opinion doesn’t address the collection of Internet data, which the government says it stopped doing in a blanket fashion in 2011, or the surveillance of the content of Internet transmissions—emails, texts, etc.

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Judge Leon points out that the government’s interest in collecting all this metadata isn’t just to identify unknown terrorists and their plans. It’s to do so faster, because otherwise, why not take the time to get a warrant, or in some other way demonstrate a particular suspicion of a target? And yet, in the most breathtaking portion of his opinion, Judge Leon says that the government “does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack” or otherwise aided the government in any time-sensitive objective. The government presented evidence about “three recent episodes,” but none “involved any apparent urgency.” Next comes a devastating footnote: The government could have presented more evidence in secret, only to the judge. But it didn’t. What about the 54 thwarted terrorist attacks that some NSA backers have proclaimed? Judge Leon says no one showed any proof of them to him. I know doubts about the veracity of the government’s claims have been raised before today. But it’s amazing to see them so definitively shredded by the judge whom the government had every reason to persuade.

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.

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