WASHINGTON — A federal judge’s ruling on the Obama administration’s “Orwellian” mass collection of data through the NSA put wind in the sails of a handful of lawmakers who came down the hardest on the White House in the wake of former contractor Edward Snowden’s revelations.
That, coupled with the promise that there are still surprises to come from the Snowden stash, could revive privacy legislation in the new year.
D.C. District Court Judge Richard Leon, appointed to the bench by George W. Bush, ruled that the bulk collection of telephone metadata most likely violated the Fourth Amendment and should be stopped along with the destruction of metadata currently in the government’s possession, but he stayed his ruling to give the case time to work up to the D.C. Circuit.
“In doing so, I hereby give the Government fair notice that should my ruling be upheld, this order will go into effect forthwith,” he wrote.
“I cannot imagine a more ‘indiscriminate’ and ‘abitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Leon wrote, adding that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”
Sen. Ron Wyden (D-Ore.) said the ruling “hits the nail on the head.”
“It makes clear that bulk phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said. The court noted that this metadata can be used for ‘repetitive, surreptitious surveillance of a citizen’s private goings on,’ that creates a mosaic of personal information and is likely unconstitutional,” Wyden said. “This ruling dismisses the use of an outdated Supreme Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans’ records. It clearly underscores the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans’ records.”
Wyden, Mark Udall (D-Colo.), Richard Blumenthal (D-Conn.) and Rand Paul (R-Ky.) introduced the Intelligence Oversight and Surveillance Reform Act in September to prohibit the bulk collection of records and institute new transparency reforms at the Foreign Intelligence Surveillance court.
“Significantly, the judge also noted that he had ‘serious doubts about the efficacy of the program.’ The reason that he and many others have these doubts is that the executive branch’s claims about this program’s effectiveness are now crumbling under public scrutiny,” Wyden continued. “Protecting the country from terrorism is obviously vitally important but the government can do this without collecting the phone records of massive numbers of law-abiding men, women and children.”
Paul lauded the judge for “upholding and protecting our Fourth Amendment rights.”
“This decision represents an important first step in having the constitutionality of government surveillance programs decided in the regular court system rather than a secret court where only one side is presented,” Paul said. “In June, I introduced the Fourth Amendment Restoration Act which, if enacted, would have restored our Constitutional rights and declared that the Fourth Amendment shall not be construed to allow any agency of the United States government to search the phone records of Americans without a warrant based on probable cause.”
“The NSA phone surveillance program is a blatant abuse of power and an invasion of our privacy,” he added. “This ruling reminds the Federal government that it is not above the law. I will continue to fight against the violations of Americans’ constitutional rights through illegal phone surveillance until it is stopped once and for all.”
The alliance of the core senators involved in this push is rooted in their shared privacy advocacy beliefs. Wyden was the only Democrat to stand and assist Paul during his 13-hour talking filibuster over domestic drone use.
Udall, who joined with Judiciary Committee Chairman Pat Leahy (D-Vt.) to introduce a bicameral surveillance reform package modeled on the September bill with Paul, Wyden and Blumenthal, said the ruling confirms “the bulk collection of Americans’ phone records conflicts with Americans’ privacy rights under the U.S. Constitution and has failed to make us safer.”
“This court ruling only underscores the urgent need for Congress to act and pass my bipartisan bill to ensure the NSA focuses on terrorists and spies — and not innocent Americans,” he said.
Blumenthal said Congress should now act “by creating greater transparency and a special advocate whose client is the Constitution to advocate on behalf of Americans’ liberty and privacy.”
“When exposed to the sunlight of constitutional scrutiny, this massive secret surveillance program could not stand. An independent court, hearing both sides of the argument, has protected precious liberties and rights,” he said. “Congress must act to create a Special Advocate, which I’ve urged, so unconstitutional surveillance is stopped before privacy is invaded illegally – as it was here for a decade.”
At the White House, press secretary Jay Carney reiterated that President Obama asked for and just received a comprehensive review of the intelligence gathering system.
“What I can tell you is that on Friday, the President’s Review Group on Intelligence and Communications Technology submitted its report to the president. The president is grateful to the group — that includes Richard Clarke, Michael Morell, Geoffrey Stone, Cass Sunstein, and Peter Swire — for devoting themselves to this effort over the past several months and providing thoughtful input for the administration to consider as we conclude the ongoing interagency review of signals intelligence collection being led by the White House,” Carney said.
He added that the report “draws on the group members’ considerable expertise and intelligence, counterterrorism, civil liberties law, and privacy matters, and on consultations with the U.S. government, privacy, and civil liberties advocates in the private sector.”
“Over the next several weeks, we will be reviewing the review group’s report and its more than 40 recommendations as we consider the path forward, including sorting through which recommendations we will implement, which might require further study, and which we will choose not to pursue,” Carney said. “We expect the overall internal review to be completed in January. After that, the president will deliver remarks to outline the outcomes of our work, and at that time we will make public the review group’s full report and other conclusions of our work.”
Sen. Bernie Sanders (I-Vt.), though, advocated “the strongest legislation possible to end the abuses by the NSA and other intelligence agencies.”
“In my view, the NSA is out of control and operating in an unconstitutional manner,” Sanders said. “Today’s ruling is an important first step toward reining in this agency but we must go further.”
In the lower chamber, an author of the original Patriot Act said the ruling underscored the need to pass his USA FREEDOM Act introduced with Leahy at the end of October, which along with stopping the data collection would allow businesses to release information about FISA requests.
Rep. Jim Sensenbrenner’s (R-Wis.) bill currently has 115 cosponsors in the House and 18 in the Senate, as well as backing from AOL, Apple, Google, Microsoft, Yahoo, Facebook, Twitter, LinkedIn, Mozilla and other tech companies.
“The slow trickle of revelations that began in June about NSA spying have exposed the most intrusive and secretive programs in American history. From the onset, I have been extremely critical of the government’s dragnet collection of Americans’ data,” Sensenbrenner said.
“I am encouraged by the district court’s ruling. It will add to the growing momentum behind the USA FREEDOM Act… the Executive Branch should join Congress to institute meaningful reform.”