A federal judge on Monday ordered the National Security Agency to stop collecting telephone records for some of the citizens who sued the government after Edward Snowden leaked details of the vast sweep of private data.
The ruling from U.S. District Judge Richard Leon comes almost two years after he issued an injunction to halt the program. At that time, he stayed his injunction to give the government time to appeal.
But the 2nd U.S. Circuit Court of Appeals took most of that time to decide on a secondary issue, and even though the collection program is about to expire and be replaced by a new set of rules, Leon said enough is enough.
“I will grant plaintiffs J.J. Little and J.J. Little & Associates’ requests for an injunction and enter an order consistent with this opinion that (1) bars the government from collecting, as part of the NSA’s Bulk Telephony Metadata Program, any telephony metadata associated with these plaintiffs’ Verizon Business Network Services accounts and (2) requires the government to segregate any such metadata in its possession that has already been collected.”
Leon explained that in his December 2013 opinion, he stayed his order “pending appeal in light of the national security interests at stake and the novelty of the constitutional issues raised.”
“I did so with the optimistic hope that the appeals process would move expeditiously,” he said. “However, because it has been almost two years since I first found that the NSA’s Bulk Telephony Metadata Program likely violates the Constitution and because the loss of constitutional freedoms for even one day is a significant harm … I will not do so today.”
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He said the plaintiffs are likely to succeed on the merits of their Fourth Amendment claim.
Leon noted the importance of protecting the Fourth Amendment and concluded he could not “allow the government to trump the Constitution merely because it suits the exigencies of the moment.”
He continued, “To be sure, the very purpose of the Fourth Amendment would be undermined were this court to defer to Congress’s determination that individual liberty should be sacrificed to better combat today’s evil.”
In the program, the NSA monitors the telephone numbers used in calls in an effort to identify potential national security threats.
The program was exposed by former NSA contractor and document leaker Edward Snowden, who has sought refuge in Russia.
Several plaintiffs sued, and Leon ruled the program is likely unconstitutional. The case was sent up to the appeals court, which sat on it for months.
A replacement program, adopted by Congress and scheduled to begin at the end of November, essentially has the telephone companies keep the records and give them to the government according to a protocol.
The appeals court ordered the case back to Leon to determine whether discovery would be helpful.
The most significant issue raised at the appellate level was that the plaintiffs were customers of Verizon Wireless, while it was the company’s business network that was identified as a participant in the data-collection program.
Attorney Larry Klayman of Freedom Watch, who brought the case on behalf of himself and other plaintiffs, then added the business network customers to the lawsuit.
Leon pointed out that “although the daily bulk collection, storage and analysis of telephony metadata is not expressly authorized” by the law, the government went ahead with the program.
“This is one of the most significant cases in the history of litigation against the government,” Klayman said.
“Never before in American history have people been subjected to such egregious violations of their constitutional rights,” he said. “Thank God that there are judges like Leon who will stand up for the American people. Without this, revolution is almost assured if more judges do not start to do their job, like Leon, and protect the citizenry from government tyranny.”
For Klayman himself and a couple other plaintiffs, the judge said there was not enough evidence of their own injury. The judge explained that documentation about the secret program’s efforts to obtain their specific information was not in evidence.
But for the Little plaintiffs, there was no such hurdle.
“Given the strong presumption that the NSA collected, and warehoused, the Little plaintiff’s data within the past five years, these plaintiffs unquestionably have standing to enjoin any future queries of that data,” Leon wrote.
He said neither adjustments President Obama made in the program, nor its scheduled demise in weeks, nor the replacement data collection program coming soon, alters his analysis that the actions violate the Fourth Amendment.
“The fact remains that indiscriminate, daily bulk collection, long-term retention, and analysis of telephony metadata almost certainly violates a person’s reasonable expectation of privacy,” he said.
He called it “a sweeping, and truly astounding program that targets millions of Americans arbitrarily and indiscriminately.”
He said it’s “absurd to suggest the Constitution favors, or even tolerates, such extreme measures!”
Finally, he said, Americans were kept in the dark by the government.
“The program was, and continues to be shrouded in secret,” he wrote. “This may, of course, be practically necessary for the program to be effective, but it nevertheless increases the level of the privacy intrusion.”
Worse, he added, the results of the government’s efforts are nil.
“To date, the government has still not cited a single instance in which telephone metadata analysis actually stopped an imminent attack, or otherwise aided the government in achieving any time-sensitive objective.”
WND reported when Klayman expressed the desire for the government “to obey the Fourth Amendment.”
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Klayman wrote that a preliminary injunction is needed so that the government “can be held to obey the law, and can be held in contempt, if necessary.”
He said requiring the government to follow the Fourth Amendment “is not too much to ask.”
Klayman said the fact that the USA Patriot Act, under which the spying has been done, is expiring and is being replaced by the USA Freedom Act, does not matter.
The analysis remains, he wrote, “because the government defendants do not admit to any limitation from those particular statutes on … spying on plaintiffs and other U.S. citizens who have no connection to terrorism.”
In Leon’s original injunction, he called the program “almost Orwellian.”
Klayman originally sued the NSA, Barack Obama, then-Attorney General Eric Holder and a number of other federal officials. Other defendants include NSA chief Keith Alexander, U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson, Director of National Intelligence James Clapper, CIA chief John Brennan, FBI chief James Comey, the Department of Justice, the CIA and the FBI.
Plaintiffs in the case include Klayman, Charles and Mary Ann Strange, Michael Ferrari, Matt Garrison and J.J. Little.
The data that the NSA collects, they explained in a brief, “reveals political affiliation, religious practices and peoples’ most intimate associations.”
“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”
The groups’ brief said “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”