Judge: NSA Phone Program Likely Unconstitutional

Politico writes Judge: NSA phone program likely unconstitutional

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional.

U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.

Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon, an appointee of President George W. Bush.

This all seems pretty clear to me. The NSA is barred from collecting info on Americans. What's they're doing is collecting everything they can (phone, internet, etc.) and storing it for some time (a week, a month, more and it varies by the type of info). Then, if they have suspicions they're getting court orders to look at this saved data for particular people or phone numbers etc. They claim that until they query the databases they're not "collecting" which seems like an odd definition of "collecting" to me.

To me, they've invented a big time machine or if you will a TiVo for everything. They can rewind a month (or whatever it is) and after the fact find out what you were doing, who you were talking to, and where you were. The metadata versus content distinction isn't that important. If it wasn't useful to them (and potentially damaging to you) they wouldn't bother. This might be a thing that we want the government to do, but it seems to me it's a pretty big power and they shouldn't have it without our agreement. It seems to me that people will behave differently if they know they're being recorded.

I'm not sure the court system is the place to have this conversation. It seems dumb to have a set of antiquated laws (from the 1970s and the 1790s) and to try to shoehorn in these capabilities into strain analogies. Is a Facebook chat like a conversation out in the woods behind a tree? This is what Congress is for. There should be public debate and ultimately agreement on what capabilities we want and what risks we're willing to take and then we should write laws describing it.

Also while I didn't see it, I saw a lot of crap about how bad last night's 60 Minutes piece on the NSA was. Spencer Ackerman sets the record straight. NSA goes on 60 Minutes: the definitive facts behind CBS's flawed report

Update: Here's SCOTUSblog on the ruling, Judge: NSA phone sweep likely invalid