collecting the plaintiffs’ telephone metadata, saying the intelligence
gathering likely violates Fourth Amendment privacy guarantees.
telephone metadata, a federal judge in Washington has ordered the
National Security Agency to stop collecting bulk call information on
two individuals and to destroy any metadata already collected about
U.S. District Judge Richard Leon issued the temporary restraining
order on Monday after concluding that the once-secret NSA
intelligence-gathering mission almost certainly violates privacy
guarantees of the Fourth Amendment.
In an abundance of caution, Judge Leon stayed his order pending an
expected appeal by the government.
But the judge added: “I hereby give the Government fair notice that
should my ruling be upheld, this order will go into effect forthwith.”
The ruling comes at a relatively early stage of a civil lawsuit
charging the government with violating the U.S. Constitution and the
bounds of the Foreign Intelligence Surveillance Act.
The plaintiffs had asked the judge to temporarily order the government
to stop its intelligence collection effort during the litigation. For
the judge to issue such a temporary injunction, he must find a
“significant likelihood” that the plaintiffs will ultimately win their
case after it has been fully briefed and argued.
Although the case has only been presented in preliminary form at this
stage, Judge Leon left little doubt about how he was inclined to rule
later on the merits of the case.
“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 and
analyzing it without prior judicial approval,” Leon wrote in a 68-page
“Surely, such a program infringes on that degree of privacy that the
Founders enshrined in the Fourth Amendment,” he said.
“Indeed, I have little doubt that the author of our Constitution,
James Madison, who cautioned us to beware ‘the abridgement of freedom
of the people by gradual and silent encroachment by those in power,’
would be aghast,” the judge wrote.
The lawsuit was among several suits filed in June following
unauthorized disclosures about U.S. government surveillance programs
by former NSA contractor Edward Snowden.
Two of the suits were filed by Larry Klayman, an attorney and founder
of the public interest group, Freedom Watch, and Charles Strange, the
father of an NSA cryptologist who was killed in Afghanistan when his
helicopter was shot down.
Judge Leon’s ruling focuses on the constitutional question of whether
the secret collection of telephone metadata violates privacy
protections of the Fourth Amendment.
He noted that the framers of the Constitution sought to protect the
people, their houses, papers, and effects from “unreasonable searches
and seizures,” particularly general warrants that authorized British
authorities to search an entire house for incriminating evidence.
The Fourth Amendment requires a more focused search that is allowed
only after authorities have convinced a neutral judge there is good
reason to suspect wrongdoing.
In contrast, Leon said, the metadata collection program operates
without any individualized suspicion of wrongdoing that might justify
the search and storage of personal metadata.
“The threshold issue… is whether plaintiffs have a reasonable
expectation of privacy that is violated when the Government
indiscriminately collects their telephony metadata along with the
metadata of hundreds of millions of other citizens without any
particularized suspicion of wrongdoing, retains all of that metadata
for five years, and then queries, analyzes, and investigates that data
without prior judicial approval of the investigative targets,” Leon
Government lawyers maintain that American citizens have no expectation
that information about their telephone usage will remain private. Once
they make a phone call, the electronic signals released into the
system belong to the system and are no longer private, they argue.
“I disagree,” the judge said.
“I believe that bulk telephony metadata collection and analysis almost
certainly does violate a reasonable expectation of privacy,” he said.
The judge said the government was relying on a Supreme Court precedent
involving outdated surveillance methods.
“Thirty-four years ago, when people wanted to send ‘text messages,’
they wrote letters and attached postage stamps,” he said.
In 2013, he noted, people have an entirely different relationship with
phones. “This rapid and monumental shift towards a cell phone-centric
culture means that the metadata from each person’s phone reflects a
wealth of detail about their familial, political, professional,
religious, and sexual associations,” he wrote.
“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,” the judge said.
The opinion won immediate praise from civil libertarians.
“Judge Leon’s ruling gives Fourth Amendment case law a long overdue
update,” said Elizabeth Goitein of the Brennan Center for Justice.
“Americans have always had a reasonable expectation of privacy in
their associations and beliefs. Today, this kind of information is
easily revealed through computer analysis of bulk telephone records,”
Ms. Goitein said. “This ruling brings the law in line with
Jameel Jaffer, deputy legal director of the American Civil Liberties
Union, said the judge exposed the government’s legal justification of
the data collection as inadequate and out of date.
“As Judge Leon notes, the government’s defense of the program has
relied almost entirely on a 30-year-old case that involved
surveillance of a specific criminal suspect over a period of two
days,” Mr. Jaffer said.
“The idea that this narrow precedent authorizes the government to
place every American under permanent surveillance is preposterous,” he
The case is Klayman v. Obama (13-851).