Unconstitutional NSA surveillance: Why today’s ruling was a huge step for privacy

U.S. District Judge Richard Leon ruled today that the National Security Agency’s phone metadata collection program is violating the Constitution.

But what is “phone metadata” and why might collecting it be unconstitutional?

Judge Leon took on a case brought forth by a man named Larry Klayman, who sued the government after former NSA contractor Edward Snowden began revealing information about the NSA surveillance programs. The judge’s opinion stated that the bulk collection of phone metadata was unconstitutional, and he ordered an injunction — or a ban — on its collection. The government would also have to delete any information it had previously collected for the two plaintiffs in the case. However, he stayed that decision until the appeals court has had the final say, citing national security reasons.

“This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution,” Jameel Jaffer, deputy legal director of the American Civil Liberties Union, told VentureBeat. “As Judge Leon notes, the government’s defense of the program has relied almost entirely on a 30-year-old case that involved surveillance of a specific criminal suspect over a period of two days.”

Metadata

The suit specifically touches on phone metadata, or information about who you call, when you called them, where you called them, what kind of carrier you were using, and more. It does not, however, include the actual content, or a wire tap, of your call.

Major telecommunications companies T-Mobile and AT&T declined to comment on today’s news.

In the past, the NSA also collected Internet metadata, but it ended that program for “operational and resource reasons,” according to the Obama administration’s director of communications for National Intelligence, Shawn Turner, who provided a statement to The Guardian when the program was leaked. The NSA also has programs set up to monitor content via wiretapping and subpoenas.

Smith v. Maryland

Judge Leon’s ruling circles the issue of Smith v. Maryland, as Ars Technica notes. In this court case, it was determined that information about phone numbers dialed is not protected as private but rather is classified as “business records.” Because of this, law enforcement does not need a warrant to get this kind of information.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” he said in his opinion.

Judge Leon offers that the decision, which was made in 1979, too far predates both the technology and the capabilities in our phones today. There’s a lot more information that could be considered metadata that a smartphone produces — information that can paint a much clearer picture of a person’s activities.

For example, the Washington Post recently released a leaked document explaining that the NSA collects over 5 billion pieces of mobile location data a day alone. Using a number of tools, the NSA can determine if someone is following you, if you’re connected to an individual, and more.

“The main thrust of the government’s argument here is that under Smith, no one has an expectation of privacy, let alone a reasonable one, in the telephony metadata that telecom companies hold as business records; therefore, the Bulk Telephony Metadata Program is not a search,” said Judge Leon in his opinion. “I disagree.”

Demand for transparency

Seven major technology companies have also raised their voices in favor of surveillance reform and transparency. Google, Microsoft, Facebook, Twitter, AOL, LinkedIn, and Yahoo created the Reform Government Surveillance coalition earlier this month, outlining five ways the government needs to change.

Google, Microsoft, and Yahoo declined to comment on today’s developments. A Microsoft spokesperson did explain that the ruling focused only on the phone metadata surveillance, and that the company would not weigh-in on the one part.

The government has otherwise been hit with a number of these lawsuits regarding its surveillance, including one brought forth by the Electronic Frontier Foundation and the ACLU.

In response to Judge Leon’s ruling today, EFF activist Trevor Timm wrote in a blog post, “While we still have a long way to go before the NSA mass phone records program is permanently declared unconstitutional once and for all, this is a truly historic ruling and an important first step in ensuring American’s privacy is protected in the digital age.”

Additional reporting from Jordan Novet.