The Cable

Judge Orders Limits on NSA Spy Program 20 Days Before It Ends

Judge Richard Leon limits what he calls a "sweeping and truly astounding program that targets millions of Americans arbitrarily and indiscriminately."

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Privacy advocates notched a major win Monday when a federal judge ruled that the NSA’s bulk collection of U.S. phone records was unconstitutional. The actual impact, though, will be extremely limited: The program in question is set to shut down in less than three weeks.

The case in question was brought by the conservative legal activist Larry Klayman and resulted in a memorable December 2013 opinion from Richard Leon, a judge on the U.S. District Court for the District of Columbia, that called the NSA’s phone record collection program “almost Orwellian.”

The government appealed that ruling, and in August, after considering the case for nearly two years, the Second Circuit vacated Leon’s ruling, saying he had not adequately determined whether Klayman’s phone records had been collected by the NSA. The Second Circuit sent the case back to Leon, and Monday’s ruling is the judge’s angry reply to the appellate court and harshly criticizes it for slowrolling the case.

In it, Leon reaffirmed his earlier criticism of the law when he wrote that “this court simply cannot, and will not, allow the government to trump the Constitution merely because it suits the exigencies of the moment.” In a 43-page decision, Leon described the NSA intelligence collection program as a “sweeping and truly astounding program that targets millions of Americans arbitrarily and indiscriminately.”

The NSA’s mass collection of so-called “telephonic metadata,” first revealed by NSA whistleblower Edward Snowden, is slated to come to an end on November 29, when a transition period for NSA reforms mandated by the USA Freedom Act comes to an end. Leon acknowledged in his ruling that it would have little practical impact given the program’s short lifespan. Still, he said it was important for the judiciary to weigh in on the constitutionality of the program while it still had the chance.

“With the government’s authority to operate the bulk telephony metadata program quickly coming to an end, this case is perhaps the last chapter in the judiciary’s evaluation of this particular program’s compatibility with the Constitution,” he wrote. “It will not, however, be the last chapter in the ongoing struggle to balance privacy rights and national security interests under our Constitution in an age of evolving technological wizardry.”

Leon ordered the NSA to end the collection of the phone records of two plaintiffs in the case, attorney J.J. Little and his law firm, J.J. Little & Associates. Leon determined that the other plaintiffs in the case, including Klayman, had not offered sufficient evidence to prove that their telephone records had been scooped up by the NSA.

Steve Vladeck, a professor of law at American University and a close observer of national security cases, told Foreign Policy that the opinion is unlikely to have any wider implications, and is one written for the history books.

The NSA declined to comment on the case, referring questions from reporters to the Justice Department. Nicole Navas, a spokeswoman for the department, said the government is reviewing the case. Late Monday, Justice Department lawyers filed an emergency motion to Leon requesting that he stay his ruling and said that filtering out Little’s records from the database will require shutting down the program. Implementing a technical solution to comply with Leon’s ruling will take months, the lawyers claimed in their filing.

Snowden had revealed the existence of the program in question when he provided a court order compelling Verizon Business Network Services to turn over in full and on a daily basis the telephone records of its customers. Leon’s ruling against the program in 2013 represented a landmark moment in the post-Snowden era of judicial pushback against government surveillance programs.

Anticipating a government appeal, Leon stayed his 2013 injunction against the NSA’s intelligence gathering, but it wasn’t until August of 2015, nearly two years after Leon issued his first ruling in the case, that the Second Circuit vacated Leon’s ruling and questioned whether Klayman could prove that the NSA had hoovered up his telephone records.

Since Leon first weighed in on the case, it has been overtaken by events on Capitol Hill. In June, Congress passed the USA Freedom Act, which ended the NSA’s bulk collection of telephone records by moving the storage of such records into the hands of telephone companies. Rather than querying their own databases containing such records, the NSA will, starting on Nov. 29, have to secure a court order in order to receive such telephone data from phone companies.

The minor reforms contained in the Freedom Act came to be the most significant response to the firestorm of criticism generated by Snowden’s disclosures, and, even so, the NSA privately did not put up much of a fight to preserve the program. In the aftermath of Snowden, it came to be seen as a politically toxic program with few security benefits. An independent review of the program found that it had neither discovered nor helped disrupt any terrorist plots.

Leon’s ruling Monday noted that it was little more than a principled statement in a debate that had largely overtaken his court. “The loss of constitutional freedoms for even one day is a significant harm,” he wrote.

Chip Somodevilla/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace. @EliasGroll

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