Indiana University privacy expert: Judge's NSA ruling 'extraordinarily significant'

Dec. 17, 2013


BLOOMINGTON, Ind. -- U.S. District Court Judge Richard J. Leon dealt a stinging rebuke to the Obama administration on Monday when he found the NSA’s surveillance of metadata about billions of Americans' phone calls to be unconstitutional. And argument that the Constitution may not apply to surveillance for intelligence purposes now appears to be dead, according to an Indiana University privacy and cybersecurity expert.

Under the Bulk Telephony Metadata Program first disclosed by Edward Snowden, the Foreign Intelligence Surveillance Court authorized the National Security Agency to collect metadata -- such as number called, time and duration of call, location of caller, etc. -- about virtually all calls made by customers of Verizon, as well as of other major U.S. phone companies.

In his ruling Monday, Leon found that the surveillance program violates the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures. Indiana University Maurer School of Law Distinguished Professor Fred H. Cate said the judge's 68-page opinion is noteworthy for five reasons:

• The ruling is a first.

“Judge Leon’s decision is the first to find the surveillance program, or any decision by the Foreign Intelligence Surveillance Court, unconstitutional,” said Cate, who also directs the Center for Applied Cybersecurity Research. “By finding a constitutional violation, rather than merely a violation of federal law or administrative regulation, Judge Leon made it considerably harder for Congress or the administration to resurrect the program with merely operational or legislative changes."

• Leon dealt head-on with the claim that the third-party doctrine created by the Supreme Court in the 1979 case of Smith v. Maryland immunized the NSA’s collection of calling records.

In Smith, the high court has denied constitutional protections to telephone numbers dialed on the basis that the information was “voluntarily disclosed” to third parties and therefore could not receive any privacy protection. Leon categorically distinguished the Smith case: “In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program.”

Leon went on to note “the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.”

Cate said, “If the third-party doctrine applied to today’s digital communications, then we have no constitutional protection for privacy because all of our digital data -- email, voicemail, social media postings, documents and photos stored in the cloud or on corporate servers -- are held by third parties. Judge Leon’s opinion carefully surveys this issue and finds that changes in technology and applications make the broad scope that the government has claimed for the third-party doctrine today unconstitutional.”

• Leon rejected the administration’s argument about the limited role of courts.

In its filings, the government had argued that individuals whose data was being collected had no right to challenge the constitutionality of the surveillance because Congress had granted the Foreign Intelligence Surveillance Court exclusive jurisdiction over such cases but had only permitted the government to appear before that secret court.

The judge stressed that “where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen's right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme.”

Similarly, the government had argued that the plaintiffs could not prove that records about their specific calls had been included in the surveillance program, even though they were customers of Verizon and the Foreign Intelligence Surveillance Court had approved the collection of data about “all” calls.

“The government has been making these and similar arguments in a number of cases challenging sweeping surveillance programs,” Cate said. “Those arguments are shocking in their breadth and disingenuousness -- namely, that even if the American public has had its rights violated, there is no way to seek a remedy. Judge Leon properly rejected those arguments outright.”

• Leon’s opinion questioned the government’s claims about the importance of the metadata surveillance program.

“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 achieving any objective that was time-sensitive in nature,” Leon wrote.

In response to the government’s argument that removing information from its collection of metadata would be “burdensome,” Judge Leon wrote: “Of course, the public has no interest in saving the Government from the burdens of complying with the Constitution!”

• The ruling relies on established law

Cate noted, “Judge Leon is placing his decision squarely within the Supreme Court’s privacy jurisprudence -- trying to rebut any charge that he is creating new privacy rights by making clear that he is just trying to give meaning to the rights that the high court has long recognized.”

Leon wrote: “Indeed, as the Supreme Court noted more than a decade before Smith, ‘[t]he basic purpose of th[e Fourth] Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’"

“This is an extraordinarily significant decision,” Cate said, “and while it is certain to be appealed and so is just the beginning of a longer process, it raises the bar for government surveillance today, and I suspect we will look back at this decision in the future as marking a key turning point in re-establishing some balance between the rights of the people and the power of our government.”

Cate can be reached at 812-855-1161 or