Federal judge finds NSA phone metadata collection probably violates the Fourth Amendment

Allah:

The headline says “probably” because the ruling was on a preliminary injunction. He’ll issue a ruling on a permanent injunction after this order is inevitably appealed and he hears further arguments from both sides, assuming this issue doesn’t land before the Supreme Court first. A weird fact about the judge in this case: He was nominated to the bench by Dubya on … September 10, 2001. If you support the NSA metadata program, there’s the peg for the obligatory “September 10th mentality” talking point.

Rand Paul is, as you might expect, excited:

I applaud U.S. District Court Judge Richard Leon for protecting our #FourthAmendment rights. MUST-READ: http://t.co/Nuj07BO6lW

— Rand Paul (@RandPaul) December 16, 2013

Here’s the opinion, which is worth skimming even if you’re not trained in law. Leon writes more accessibly than most judges, especially in the key section. Three issues in a case like this. One: Doesn’t the law say that only the FISA Court can hear a challenge to the NSA surveillance program? Leon’s a district court judge, not a FISA judge. How can he have jurisdiction? Two: Didn’t the Supreme Court rule once before, in the late 70s, that there’s no privacy interest in phone metadata? If that’s the case, how can there be a Fourth Amendment issue here? And three: Even if there’s a Fourth Amendment issue, why doesn’t mass metadata collection qualify as a “reasonable” search and seizure? It’s crucial to catching terrorists before they strike. Isn’t it?

On point one, Leon says it’s true — he has no jurisdiction to hear statutory challenges to a DOJ collection order. If you’re claiming that the DOJ exceeded the authority granted to it by Congress in issuing an order, that’s for the FISA Court to decide. Not only that, but American citizens don’t have standing to sue in the FISA Court. Only the recipient of a collection order, like Google or Verizon, can do that. In fact, because it’s illegal for the recipient to reveal the existence of a collection order, American citizens aren’t even supposed to know when a collection order is issued, let alone be able to sue the government. So no, there’s no jurisdiction for a federal district court to hear challenges to an order — on statutory grounds. But what if the challenge is on constitutional grounds, i.e. that an order violates the Fourth Amendment? District courts can hear those challenges, says Leon, because potential constitutional violations are of the utmost importance and Congress never went out of its way to say that that type of challenge should be heard only in the FISA Court too. Fourth Amendment questions are fair game for any lower-level federal court.

Fair enough. But what about point two, that the Supreme Court’s 1979 ruling in Smith v. Maryland established a precedent that metadata can be collected under the Fourth Amendment? Leon’s answer is the guts of the opinion; I suggest skipping to page 43 and reading it yourself.

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