Why a judge's assault on 'Orwellian' surveillance could cripple the spy agency's legal and political support.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
On Monday, a Federal District Court judge ruled that the National Security Agency’s collection and storage of all Americans’ phone records probably violates the Constitution and is an "almost Orwellian" system that "surely…infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment." It’s the first successful legal challenge to NSA surveillance since June, when Edward Snowden began a cascade of NSA disclosures. It might just set up the most important legal debate about surveillance and personal privacy in decades. And it threatens to undermine one of the major legal foundations of the NSA’s vast surveillance network.
Judge Richard Leon of the District of Columbia, a George W. Bush appointee, ordered the government to stop collecting the phone records of two plaintiffs who brought suit against the NSA’s so-called metadata program and to destroy the information it has on them now. He stayed his injunction, pending an almost certain appeal by the Obama administration. But if the case is eventually heard by an appeals court — and there are reasons to think it will be — it would be the highest-stakes and highest-profile battle to date over the NSA’s program, and a proxy argument for the broader ethical dimensions about massive government surveillance. Think of it as the NSA’s answer to the Scopes Monkey Trial — a public, and undoubtedly passionate debate about whether massive, technologically-enabled surveillance that would have been impossible a few decades ago is still compatible with core constitutional principles of privacy and freedom from unreasonable searches.
The judge ruled that the government’s collection of phone records relied on an outdated Supreme Court ruling, from 1979, that metadata isn’t protected by the Fourth Amendment — an analysis that, on its own, is likely to ignite considerable debate. "The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives," Leon wrote. "I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."
But that case, Smith v. Maryland, is part of the foundation of NSA’s global surveillance system, which relies on the collection of all kinds of metadata — from phone records, to email header information, to Internet addresses. In a more recent ruling about whether the government needs a warrant to install a GPS tracking device on someone’s car, the Supreme Court narrowly opened the door to a future ruling on whether metadata should now be protected under the Constitution, in light of the dramatic changes in technology over the past few decades. Leon’s ruling may be the first step towards bringing that issue before the nation’s highest court, and potentially altering the way the global surveillance system is run.
In some respects, momentum has been building towards this moment. The metadata program was nearly defanged over the summer, in a rare show of bipartisan support in the House of Representatives. Since then, there have been further revelations of government spying, including on U.S. allies, and a presidential review panel has reportedly recommended a sweeping set of reforms at the NSA, including prohibiting the agency from storing Americans’ phone records. Lawmakers are expected to take up legislation limiting the NSA’s powers next year, and the Senate Intelligence Committee has launched an investigation into intelligence collection programs.
Since June, the Obama administration has mounted a public relations offensive in support of the NSA program and has told lawmakers that it is legal and necessary to protect Americans from terrorist attacks — an argument that Judge Leon found unpersuasive. But officials have rarely had to publicly argue the legality and constitutionality of the program in court. The only judges to review the program have done so in secret over the past six years, and no lawyer has been present to argue that the program should be changed or discontinued.
In finding that the metadata program probably violates the Fourth Amendment, Leon ruled on broad grounds, leaving the D.C. Court of Appeals a number of potential options. They could dismiss the case — ruling, as previous courts have, that the plaintiffs lack standing to bring the suit because they can’t prove that they were individually subjected to secret surveillance.
But that was before Snowden’s leak, which provided documented evidence that the government was collecting phone records. Administration officials subsequently confirmed the program exists, and that it continues to collect information about hundreds of millions of Americans. The plaintiffs in the case, led by conservative public-interest attorney Larry Klayman, arguably have the proof of standing that has eluded prior challengers to government surveillance.
The administration would also have a hard time arguing that the need to preserve national security secrets is reason not to hear the case. Since the Snowden leak, myriad officials, including the top lawyer for the intelligence agencies, the director of the National Security Agency, and the president himself have publicly defended the program as legal and necessary for stopping terrorist attacks.
"Thanks to Snowden, the government is not really in a position to tell the D.C. Circuit, ‘You can’t reach the merits [of this case] because of state secrets," said Stephen Vladeck, a professor at American University’s College of Law who focuses on national security. Vladeck said the appeals court could also send the case back to Leon, who did not reach a ruling on the legality of the program under the Patriot Act, and basically tell him to start over. But Vladeck predicted that the court would hear the case, and that it will be a momentous event. "I think the government would push back and you’ll have a full-throated argument," for and against, Vladeck said.
It’s unclear how Leon’s ruling would affect other challenges pending in at least three other federal courts. But news of his decision seemed to renew the hopes of others who’ve brought challenges to the metadata program and have tried, unsuccessfully, to fight other aspects of NSA surveillance over the years. Jameel Jaffer, the deputy legal director for the American Civil Liberties Union, which brought a challenge to the metadata program in New York, called Leon’s ruling "a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution. …We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA’s surveillance activities back in line with the Constitution."
Of course, the ruling could end up being short-li
ved. Paul Rosenzweig, a homeland security official in the Bush administration, called Leon’s ruling "remarkable," but also "unpersuasive," and predicted that it wouldn’t stand.
The judge’s ruling also had a particular irony for critics of the NSA program and supporters of Snowden’s disclosures. "As far as I know, Snowden is the first person charged under the Espionage Act for revealing something a court later ruled unconstitutional," tweeted Trevor Timm, an activist with the Electronic Frontier Foundation.