In Lawsuit, U.S. May Have to Prove Why It Needs Phone Records Collection Program

In seeking to defeat a lawsuit challenging the legality of the bulk collection of phone records by the National Security Agency, the federal government’s lawyers may have to prove that it’s really a necessary tool to help protect the country against terrorist attacks.

That’s one interesting tidbit in the 68-page ruling (which you can read below) by U.S. District Judge Richard Leon, who today said in his opinion allowing the lawsuit to proceed that the NSA’s collection program “almost certainly” infringes the right to privacy guaranteed in the Fourth Amendment.

In ruling that a collection of phone call metadata dating back five years “significantly intrudes” on a individual’s reasonable expectation of privacy, Leon essentially challenged the government to justify its existence. He wrote that whether or not it actually rises to the level of being unconstitutional will turn on how effective the program actually is.

Leon wrote that the government has argued that the program is effective in identifying possible terrorists. But a key point is that the government has said that the program allows for those possible threats to be identified more quickly than they would be using other investigative techniques, yet offers no examples of when being so fast has made a difference. “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,” Leon wrote.

In fact, the only three instances cited by the government, in Leon’s description, appear to have not been urgent or time sensitive at all. In one case, the FBI learned of a terrorist plot when it was in its “early stages,” and conducted an investigation before turning to the NSA’s metadata collection to learn more about the people under investigation. In a second case, the metadata was used only after a terrorism suspect had been arrested in order to determine who else he had been communicating with. A third case revealed only a phone number belonging to a terrorism suspect that hadn’t previously been known to investigators and that helped to corroborate connections to other terrorists that had already been suspected.

“There is no indication that these revelations were immediately useful or that they prevented an impending attack,” Leon wrote.

Most of this starts on the bottom of page 57 of the opinion embedded below. It basically means that in order for the government to keep the metadata program on the level, it’s going to have to demonstrate the need for the extraordinary capabilities that it provides and prove that it’s better than other ways of investigating terrorist threats.

Under the metadata collection program, revealed in June, documents disclosed by former NSA contractor Edward Snowden showed that the NSA had collected vast troves of information about calls made by U.S. customers of Verizon Wireless to people overseas. The records don’t include the contents of conversations, just logs of who called whom.

But the Fourth Amendment is pretty clear about when the government has a right to gather this kind of information, and it practically always involves getting a warrant. Here’s the text of that amendment:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The government will argue otherwise in the expected appeal, but as this case winds its way through the court system, the disclosures could turn out to be interesting.

Klayman v. Obama by Brendan Sasso