WASHINGTON (Reuters) — The U.S.
government's gathering of Americans' phone records is likely unlawful, a
judge ruled on Monday, raising "serious doubts" about the value of the
National Security Agency's so-called metadata counter terrorism program.
"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," U.S. District
Judge Richard Leon, appointed by Republican President George W. Bush
in 2002, wrote in a 68-page ruling.
The U.S. Department of Justice said it was reviewing the ruling in a
case brought by Larry Klayman, a conservative lawyer, and Charles
Strange, described in court documents as the father of a
cryptologist technician for the NSA who was killed in Afghanistan in
2011. The judge ordered the government to stop collecting data about
the two plaintiffs, who were Verizon Communications Inc customers.
Verizon declined comment.
"We believe the program is constitutional as previous judges have
found," Department of Justice spokesman Andrew Ames said in a
statement.
Leon suspended enforcement of his injunction against the program "in
light of the significant national security interests at stake in
this case and the novelty of the constitutional issues" pending an
expected appeal by the government. A U.S. official said an appeal
was likely.
Leon expressed skepticism of the program's value, writing that the
government could not cite a single instance in which the bulk data
actually stopped an imminent attack.
"I have serious doubts about the efficacy of the metadata collection
program as a means of conducting time-sensitive investigations in
cases involving imminent threats of terrorism," he wrote.
That is important, he added, because for the program to be
constitutional, the government must show its effectiveness outweighs
privacy interests.
LEAKS
Former NSA contractor Edward Snowden revealed the massive phone
record collection to U.S. and British media in June. Documents
provided by Snowden showed that a U.S. surveillance court had
secretly approved the collection of millions of raw daily phone
records in America, such as the length of calls and the numbers that
are dialed.
Snowden, in a statement sent by journalist Glenn Greenwald,
applauded the ruling.
"I acted on my belief that the NSA's mass surveillance programs
would not withstand a constitutional challenge, and that the
American public deserved a chance to see these issues determined by
open courts," he said. "Today, a secret program authorized by a
secret court was, when exposed to the light of day, found to violate
Americans' rights. It is the first of many."
In its defense, the NSA says the data collected are key to spotting
possible terrorism plots and do not include the recording of actual
phone conversations. Judge Leon wrote, however, that the program
likely violated Americans' right to be free of unreasonable
searches.
Gen. Michael Hayden, former director of both NSA and the Central
Intelligence Agency, said the metadata made a contribution to
weaving the "tapestry of intelligence" and that judges "are not
really in a good position to judge the merits of intelligence
collection programs."
An Obama administration official said that on 35 occasions in the
past, 15 separate judges assigned to the secretive Foreign
Intelligence Surveillance court had declared bulk communications of
telephone metadata lawful.
Judge Leon has issued headline-making rulings before. In 2011 he
blocked cigarette-warning labels that showed graphic images such as
a man with a hole in his throat, saying they were unlawful compelled
speech, and this year he ruled that the Federal Reserve ignored the
intent of Congress in a case about debit card swipe fees.
Greg Nojeim, senior counsel at the Center for Democracy and
Technology, a nonprofit group in Washington, said the ruling "means
that the NSA bulk collection program is skating on thin
constitutional ice."
In defending the data collection, U.S. Justice Department lawyers
have relied in part on a 1979 ruling from the U.S. Supreme Court
that said people have little privacy interest when it comes to
records held by a third party such as a phone company.
Leon wrote that the latest circumstances were different.
"The government, in its understandable zeal to protect our homeland,
has crafted a counter terrorism program with respect to telephone
metadata that strikes the balance based in large part on a
34-year-old Supreme Court precedent, the relevance of which has been
eclipsed by technological advances and a cell phone-centric
lifestyle heretofore inconceivable," he wrote.
Greenwald, a former columnist for The Guardian who wrote about the
metadata collection program based on documents leaked to him by
Snowden, praised the court ruling.
"This is a huge vindication for Edward Snowden and our reporting.
Snowden came forward precisely because he knew that the NSA was
secretly violating the constitutional rights of his fellow citizens,
and a federal court ruled today that this is exactly what has been
happening," Greenwald said in an email.
A committee of experts appointed by the Obama Administration to
review NSA activities is expected to recommend that the spy agency
give up collection of masses of metadata and instead require
telephone companies to hold onto it so it can be searched. But
intelligence officials and the phone companies themselves are said
to oppose such a plan.
(Additional reporting by Alina Selyukh;
editing by Grant McCool and
Andre Grenon)
