
Federal Judge Rules NSA Phone Program Likely Unconstitutional - sethbannon
http://www.politico.com/story/2013/12/national-security-agency-phones-judge-101203.html
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dmfdmf
> U.S. District Court Judge Richard Leon found that the program appears to run
> afoul of the Fourth Amendment prohibition on unreasonable searches and
> seizures. He also said the Justice Department had failed to demonstrate that
> collecting the so-called metadata had helped to head off terrorist attacks.

This is good but the second sentence is worrying. Either we have the
constitutional right or the government can suspend it when convenient. The
implication here is that if the NSA can demonstrate that collecting metadata
is effective in fighting terrorists then abrogating the fourth amendment is
okay. The NSA has to abide by the constitution just like everyone else
regardless of any supposed advantages it might gain by abrogating the highest
law of the land.

~~~
dalke
> This is good but the second sentence is worrying. Either we have the
> constitutional right or the government can suspend it when convenient.

You read a lot into a single sentence from a news report of a 68 page court
opinion.

There's the later sentence "The judge went on to conclude that the searches
involved in the NSA metadata program were likely not permissible under the
Fourth Amendment in part because there was little evidence the program has
actually prevented terrorism."

This implies that the opinion may state other reasons for why it's
unconstitutional.

I have been unable to download that judgement. The URL provided by the news
article times out.

~~~
joering2
If you reverse this statement upside down, you come with a conclusion that
"searches involved in the NSA metadata program would likely be permissible
under the Fourth Amendment in part because they proved enough that the program
has actually prevented terrorism."

I think its wrong on its principle. Constitution does not say it could be
suspended, in parts or entirely, to fight terrorism regardless if you can
prove your approach works or not.

~~~
dalke
I still haven't been able to download the judgement, so I don't know the full
argument.

The judge _cannot_ decide that pen taps are unconstitutional. As the
referenced article points out, the 1979 Supreme Court ruling in Smith v.
Maryland "found no search warrant was needed by police to install a device
which recorded the numbers dialed on a particular phone line." Only the
Supreme Court, or a new amendment, can overturn a Supreme Court decision.

Therefore, the judge can only decide that the NSA's actions are completely
legal, or must give some logic as to judge where that boundary lies then
decide if the NSA has overstepped those bounds.

You say "Constitution does not say it could be suspended, in parts or
entirely, to fight terrorism". The question is in how to interpret
"unreasonable" given that the Supreme Court has already said that a single pen
tap is reasonable.

The judge is quoted as saying “I cannot possibly navigate these uncharted
Fourth Amendment waters using as my North Star a case that predates the rise
of cell phones.”

In my interpretation of POLITICO's summary, the judge's decision is that the
1979 Supreme Court decision, which is the legal justification of the NSA's
wholesale pen tap system, cannot be used in that manner.

~~~
dalke
There's a copy at
[http://legaltimes.typepad.com/files/obamansa.pdf](http://legaltimes.typepad.com/files/obamansa.pdf)
.

The opinion says i) the NSA program constitutes a search under the 4th, and
cannot be compared to Smith v. Maryland, along with four different reasons for
why they are not comparable, and ii) there's significant likelihood that the
search is unreasonable.

The judge points out that while "reasonable" is in general individual in
character, the Supreme Court does allow a few exceptions. For example,
parolees may be searched to see if they are following the terms of their
probation even if there is no individual suspicion.

The opinion then looks to see if the government's claims fit that "patchwork"
of exceptions. The judge writes "Given the limited record before me at this
point in the litigation - most notably, the utter lack of evidence that a
terrorist attack has ever been prevented because searching the NSA database
was faster than other investigative tactics - I have serious doubts about the
efficacy of the metadata collection program as a means of conducting time-
sensitive investigations in cases involving imminent threats of terrorism."

Don't apply your contrapositive logic to that statement. It still doesn't mean
that the NSA program, had it been effective, would be constitutional. The
opinion points to the government statement that the government could use other
means with fewer 4th Amendment problems in order to get the plaintiff's
telephone metadata. Had the NSA data gathering been effective, the judge could
still have decided that the "plaintiffs have a substantial likelihood of
showing that their privacy interests outweigh the Government's interest in
collecting and analyzing telephony metadata and therefore the NSA's bulk
collection program is indeed an unreasonable search under the Fourth
Amendment."

