ABA Journal


Constitutional Law

NSA phone-data collection program likely unconstitutional, judge says

Dec 16, 2013, 08:50 pm CST


Good for Judge Leon. Someone finally called out this lawless regime for what it is. I expect that the NSA, under Obama's direction, will promptly ignore the injunction as is the usual response by this administration to unfavorable court decisions.

By SlipKid on 2013 12 16, 9:30 pm CST

Guess this explains why the NSA has been shamelessly courting the 4th estate recently.

By BMF on 2013 12 16, 9:51 pm CST

One has to wonder how much the NSA paid to get that warm fluffy advertisement, er, "story" on 60 Minutes yesterday.

By Tyrone on 2013 12 16, 10:28 pm CST

We'll see what the SCOTUS has to say.

By faddking on 2013 12 17, 12:32 am CST

@4: One thing's for certain, no one can assume the DC Circuit will be there to run interference for the Supremes, as it more-or-less has done for a generation.

And on that, Judge Leon did something procedurally interesting. When’s the last time anyone remembers a USDJ giving more than a 30-day stay pending appeal? It's my understanding that appellants are typically happy to get a month, at which point a motion to extend the stay is brought before the appellate court. But Judge Leon had to be aware of what a 2nd Cir. motions panel did last month to eviscerate Judge Scheindlin’s stop and frisk injunction against the NYPD (and the case along with it) in the stop and frisk case: long before it could be considered on the merits. By staying his order for six months, whether deliberately or not, Judge Leon took a step that should which all but insure that his injunction against the government will not be summarily vacated - on any grounds - by a DC Cir. motions panel. (A nice touch and just in time for end of Republican domination of that court's en banc proceedings.)

Of course, the Feds could always petition for cert directly from the district court, but the last (and only?) time that happened, the USDJ was a guy named Sirica.

By fmichaels on 2013 12 17, 7:25 am CST


On the authority of only two District Court opinions - the closest one factually being an unreported case from 1988 - Judge Leon stayed the effect of his order pending disposition of the appeal in its entirety! (Fn. 71, at p. 67 )

One the one hand, it's so cheeky!!! But on the other, there's no way the government can say it have been prejudiced by the play, which only requires that it be prepared to honor the injunction as to the two named plaintiffs, as soon as the appeal is resolved, which the opinion noted "will consume at least the next six months . . ." (At p. 67.)

Bottom line: in addition to the far more important substantive points this 2002 Bush appointee makes in his opinion, he has effectively insured that no part of it will be tinkered with unless and until a merits panel of the DC Cir. (at the very least) so orders. Bravo!!!

By fmichaels on 2013 12 17, 8:49 am CST

@5&6: "this 2002 Bush appointee"

I cannot tell if you are stating this fact because it surprises you or because you think it somehow relevant.

By EsqinAustin on 2013 12 17, 2:00 pm CST

Countdown until the higher parts of the corrupt American judiciary rolls over and plays dead once someone utters the words "national security?"

By Anonymous on 2013 12 17, 2:40 pm CST

@7: Read the opinion, and then tell me you're not just a little surprised that it was written by a GW Bush-appointee.

By fmichaels on 2013 12 17, 4:41 pm CST

@8: Too much of a hot button to make it into an opinion. If and when this one goes down, it will phrased as an issue with a narrow and fairly technical point in the court's long chain of logic leading up to the issuance of the preliminary injunction. (Not that "national security" won't be whispered in someone's ear along the way.)

By fmichaels on 2013 12 17, 4:51 pm CST

Judge Richard Leon should be praised for his courage to make this decision. The meta-data is a giant fishnet of metadata collection without probable cause. I am glad that there is attention brought to this matter.

By Pacific on 2013 12 17, 6:56 pm CST

Well, assume you were asked to research the question of whether gathering this "meta-data", which does not reveal the substance of the conversations, required a search warrant. The main case you would find is the pen register case from SCOTUS in 1979. They held that a warrant was not required there. The pen register records what I think is pretty similar to the "meta-data." Since part of using the telephone is telling the phone company what number you are calling, and yours, and how long your call is, and at what time, how is privacy reasonably to be expected, said the Court. Based on that precedent, would you not opine that here, as there, no 4thA search was involved?

Here it appears that the judge brushed that off by saying it was so quantitatively different that it was qualitatively different. I suppose he was thinking of the GPS case, where, while detectives could follow around whomever they wanted to follow, based on whims or hunches or whatnot, using the GPS allowed a whole lot more of that. But wasn't part of the majority reasoning there that planting the device was a physical trespass on traditional private property? John Marshall could have handled that one if some gizmo placed by a constable on a buggy had been involved in a prosecution. This doesn't seem quite as good a precedent to support the judge's ruling as the pen register case is to overturn it.

Anyone have a link to Judge Leon's decision, rather than reports of it?

By Walt Fricke on 2013 12 18, 1:41 am CST

@12: Here's the link:

Curious to hear your views on how well Smith v. Maryland has been distinguished; seemed to me Judge Leon handled that fairly well. More daringly, he went further and set forth in detail and particularity how the underlying rational of that 1979 decision fails in the world of contemporary communications culture and technology. And while the Supreme Ct. has taken lower courts to the woodshed for doing this, it tends to be a matter of form over substance when the Court then goes ahead and overrules its prior precedence for the reasons set forth by the lower count in the first instance. See, De Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (dictum in both in majority opinion of Kennedy, L and dissent of Stevens, J).

By fmichaels on 2013 12 18, 7:53 am CST

We have a contractual relationship with the phone company and thus they have a right to keep the data on our communications. The government should end the systematic collection of data. If they desire some information they should subpoena it from the private companies by court order. The data phone number, phone number, is the private property of the phone company or server company. This is private data voluntarily provided to the private company. The government does not have the right to say it belongs to us because of national security. The NSA has not demonstrated that this led to the prevention of terrorist attacks. They should get a subpoena for each search of the data. We are not talking about probable cause.
Each week the president meets to decide his kill list. We know that he has used it against U.S. citizens. This is an easy way to create a list of enemies. It is strange how Judge Roberts changed his mind on the Obamacare decision. Who knows if they discovered because of data mining that he looked at porn or whatever and used it to intimidate or blackmail him. This is why it is dangerous.

By Pacific on 2013 12 19, 11:26 am CST

@ 14: And I heard from Someone Who Knows this stuff that under the Obama administration the NSA has also developed algorithms to locate and track conspiracy theorists....

By BMF on 2013 12 19, 3:29 pm CST

#15: Of course a conspiracy theorist would be anyone who dares criticize or question "Dear Leader".

By SlipKid on 2013 12 19, 3:34 pm CST

I suspect that after the NSA is forced to cut back on its activities, the Obama haters and chronic whiners will be the first to yell at the NSA when another major terror event occurs that the NSA did not detect and prevent.

By AndytheLawyer on 2013 12 19, 4:08 pm CST

@17: Would that the regime were as responsive to criticism and competent as you give them credit.

By SlipKid on 2013 12 19, 4:25 pm CST

NSA and the government was given the opportunity to state what terrorist attacks this prevented and no incidents were reported. The Boston brother terrorists should have been caught in this web. In spite of Russia's ratting them out this did not occur.
With the IRS targeting tea party groups and Fast and Furious and the Benghazi coverups, and the deceit of our leader, what do you expect?

By Pacific on 2013 12 19, 4:34 pm CST

@19: To the lunatic fringe there is no justifiable opposition or criticism of "Dear Leader". For pointing out facts, logic and reason, you my friend have earned a seat amongst the haters and whiners.

By SlipKid on 2013 12 19, 4:38 pm CST

@ 17: The problem with the NSA is that most of the time, the best the NSA can do by listening to phone calls, or tracking e-mails or the frequency of calls to certain people, is detect "chatter"--which sounds pretty much the same as the opposition's version of "conspiracy theories," only in other languages (--presumably with better grammar and spelling. ) It isn't until something actually happens that, with the clarity of 20/20 hindsight, the NSA can say: "Yup, all the 'chatter' pointed to THIS happening...." The choices are: to have the government monitor everything and live in constant fear that some random pattern change will indicate a potential threat --or worse, that YOUR random patterns will be perceived as a terrorist threat--OR to take your chances and exercise common sense. The chances of being run over by a bus are statistically more likely than dying in a terrorist attack.

And September 11, 2001, started out as a beautiful day--one of those rare days when the sky was totally clear everywhere in the contiguous 48 states. Of course no one remembers that.

By BMF on 2013 12 19, 4:47 pm CST

@ 20 Perhaps I am the only one looking at the situation objectively. Who made the list as being a pathetic liar and earned politifacts Liar of the Year.

By Pacific on 2013 12 19, 5:13 pm CST

Pacific @ 22: WOW! I didn't know you read Politifacts! That changes everything. Tell us more!

By BMF on 2013 12 19, 6:16 pm CST

#19 and 20 -- I did not limit my comment to the Obama administration. The event and resulting whining may well occur subsequent to January 17, 2017.

By AndytheLawyer on 2013 12 19, 6:38 pm CST

#22 -- You have persuaded me not to vote for Obama in 2016. Snicker.

By the way, if you think that Obama's 2012 opponent's win would have meant a president who would not lie, try googling "Lying for the Lord."

By AndytheLawyer on 2013 12 19, 6:40 pm CST

@24: You sure as hell did.

By SlipKid on 2013 12 19, 6:41 pm CST

OK, back on topic, please.

- <b>Lee Rawles
Web Producer</b>

By Lee Rawles on 2013 12 19, 8:09 pm CST

Three cheers for Judge Leon!!!

And yeah, on matters of alleged "national security" (wink wink), party affiliation makes no difference (just like Gitmo is still open, we're still in Afghanistan, and Obama did his best to lure us into yet another war, in Syria, based on false -- er, excuse me, "mistaken" -- intelligence). Obama and Bush have both helped created and grow a federal gov't of monstrous proportions and crushing cost. Personally I fear the gradual accretion of a police state and the attendant loss of civil liberties far more than the one-in-a-gazillion chance of being injured by a "terrorist."

By Just Some Bloke on 2013 12 20, 7:36 pm CST

Lee, come on now.... The NSA is a super-secret organization, with a taxpayer-funded Fortress of Solitude in the hinterlands of UT that no one is supposed to know about, where they do things they don't want the public to be aware of. What's to discuss?

By BMF on 2013 12 20, 7:38 pm CST

@29 - The NSA has a secret fortress at the University of Texas? Austin might be a good hiding spot, certainly unexpected, and plenty of hippies to spy on.

@8 - I hope you're wrong, Anonymous. Even with the Fourth whittled down as it has been, I have a hard time seeing how orders granting blanket requests for info such as those filed by the NSA could ever satisfy probable cause or be otherwise reasonable. That might be very wishful thinking.

By NoleLaw on 2013 12 23, 2:17 pm CST

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