Wednesday, December 18, 2013

Judge Leon's Three Key Findings Against the NSA that Prompted those Exclamation Points

“He’s very passionate; he uses a lot of italics and exclamation points,” Orin S. Kerr, a professor at the George Washington University Law School and a defender of the N.S.A.’s surveillance programs said referring to the way Judge Leon wrote the decision. Mr. Kerr said he found the judge’s ruling short “on legal reasoning.” (source: The New York Times
There are several exclamation points in this decision. Judge Leon plainly feels that he has been lied to, and that we all have been. And he seems to be done with it. (source: The New Yorker)
Considering the above comments about Judge Leon's use of exclamation points, I thought it might be interesting to see what prompted them. I read his 68 page decision, and found that Judge Leon used exclamation points three times. Here are those instances.

1(a). Plaintiffs Have Standing to Challenge Bulk Telephony Metadata Collection and Analysis.

"The Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers."

"Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Courst explain how the Government has acted in good faith to create a comprehensive metadata database... - in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers."

"Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!" (p. 38)

2. The Collection and Analysis of Telephony Metadata Constitutes a Search.

"First, the pen register in Smith was operational for only a matter of days between March 6, 1976 and March 19, 1976, and there is no indication from the Court's opinion that it expected the Government to retain those limited phone records once the case was over.

"In his affidavit, Acting Assistant Director of the FBI Robert J. Holley himself noted that "[p]en-register and trap-and-trace (PR/TT) devices provide no historical contact information, only a record of contacts with the target occurring after the devices have been installed."

"This short-term, forward-looking (as opposed to historical), and highly-limited data collection is what the Supreme Court was assessing in Smith. The NSA telephony metadata program, on the other hand, involves the creation and maintenance of a historical database containing five years' worth of data."

"And, I might add, there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!" (p. 47)

3. The Public Interest and Potential Injury to Other interested Parties Also Weigh in Favor of Injunctive Relief.

"("[T]he public interest lies in enjoining unconstitutional searches.") That interest looms large in this case, given the significant privacy interests at stake and the unprecedented scope of the NSA's collection and querying efforts, which likely violate the Fourth Amendment. Thus, the public interest weighs heavily in favor of granting an injunction."

"The Government responds that the public's interest in combating terrorism is of paramount importance - a proposition that I accept without question. But the Government offers no real explanation as to how granting relief to these plaintiffs would be detrimental to that interest. Instead the Government says that it will be burdensome to comply with any order that requires the NSA to remove plaintiffs from its database."

"Of course, the public has no interest in saving the Government from the burdens of complying with the Constitution!" (p.65-66)

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Here's the full opinion. It's well-worth reading. The fact is that our interaction with and reliance upon technology has fundamentally changed what privacy means to us today and that will certainly change even more tomorrow. Past court decisions from 30 years ago and longer which have informed current laws protecting our Fourth Amendment rights should be re-visited and updated to meet today's new reality of instant communication, geolocation, and data analytics.

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