Ordinarily, except for in California, federal district court judges assiduously follow Supreme Court precedent even when it is not clearly on point. But yesterday, D.C. District Court Judge Richard Leon seems to have ignored the 1979 high court ruling in Smith v. Maryland on the lack of any enforceable expectation of privacy in so-called meta-data collected by telephone companies, which seems to us to be precisely on point:
A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional. U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.
Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.
“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,” wrote Leon, an appointee of President George W. Bush.
The preliminary injunction Leon granted Monday does not require him to make a definitive ruling on the constitutional questions in the case, but does take account of which side he believes is more likely to prevail.
Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case…
Judge Leon said the three-decade-old precedent was not applicable to a program like the NSA’s because of its sophistication and because telephone use has become far more intense in recent years.
“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” the judge wrote. “I cannot possible navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”
DeVine Law thinks the judge’s notion that the invention of cell phones obliterates the legal concept relied upon by the Supreme Court in Smith v Maryland is unlikely to prevail but does welcome revisiting the issue if they eventually agree to hear the inevitable appeal. Judge Leon did have the good judgment to stay his preliminary injunction pending appeal.
The issue is whether such searches are “reasonable” under the circumstances, the circumstances being the prevention of terrorist attacks and not criminal prosecution. This re-framing of the question presented to the Supreme Court in 1979 would seem, in our view, to strengthen the government’s case.