Update: Judge rules NSA spy efforts may be unconstitutional

Judge Richard Leon sees 'a substantial likelihood of success' by plaintiffs who argue their Fourth Amendment rights have been violated

In a potential blow to government surveillance efforts, a federal judge in Washington D.C today ruled that the National Security Agency's practice of collecting phone metadata records on millions of Americans may be unconstitutional.

In a 68-page ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia noted that the plaintiffs in the case had a legal basis for challenging the constitutionality of the government's bulk data collection.

Based on information presented to the court, the plaintiffs have demonstrated "a substantial likelihood of success on the merits of their Fourth Amendment claim" against unreasonable search by the government, the Judge ruled.

He granted a motion for a preliminary injunction filed by public interest lawyer Larry Klayman and other plaintiffs in the case seeking an immediate end to the NSA's bulk collection of phone metadata records. However, because of the significant national security interests at stake and the novelty of the constitutional issues raised by the case, Leon said he would stay the preliminary injunction pending an appeal by the government.

The lawsuit was filed in June by Klayman and by the parents of a Navy SEAL member killed in action in Afghanistan. It charged that the data collection efforts first unveiled by The Guardian violate constitutionally protected privacy rights and rights against unreasonable search and seizure.

The three named plaintiffs in the lawsuit are Klayman, founder of Judicial Watch and a former prosecutor, and Charles and Mary Strange, the parents of Michael Strange, a Navy SEAL who was killed when his helicopter was shot down in Afghanistan by Taliban fighters.

The complaint describes Klayman as a Verizon customer and public advocate who has been "highly critical" of the Obama administration and has filed multiple lawsuits against the president in the past. Others named as defendants include U.S. Attorney General Eric Holder, NSA Director Keith Alexander and Verizon CEO Lowell McAdam.

The lawsuit seeks $3 billion in compensatory and actual damages from the government and an immediate end of the NSA spying program. It accuses the government of "violations of privacy, including intrusion upon, seclusion, freedom of expression and association, due process, and other illegal acts."

The government has argued that its Bulk Telephony Metadata Program is a crucial counter-terrorism program that helps it identify people in the U.S. who might be communicating with known terrorists. It has insisted that the tens of millions of metadata records being collected on a daily basis do not include information such as the contents of calls or the names and addresses of subscribers.

The NSA has argued that it has the authority to collect the data under a provision of the Foreign Intelligence Surveillance Act.

Leon today rejected the government's claims that Klayman and the other plaintiffs had no standing to challenge the data collection practices. He also dismissed the government's arguments that no actual search of the plaintiffs' data had taken place and noted that based on the government's own description of its metadata collection program, it is clear that it was searching through the data it collected.

"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 and analyzing it without prior judicial approval," Leon wrote. "Surely such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."

The judge noted that the NSA's main motivation appears to be convenience and speed rather than any justified national security reasons. The bulk collection is happening not merely to investigate potential terrorists but to be able to do so faster than other investigative methods might allow.

And yet, the government has not been able to show one instance where the bulk data collection helped stop a potential terrorist threat or helped it achieve any counter-terrorism objective that was time sensitive in nature, he said. None of the examples provided by the government involved any apparent urgency that would justify the bulk collection of phone metadata, he wrote.

"I am not convinced at this point in the litigation that the NSA's database has truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, he said in ordering the NSA to delete any metadata records it might have on Klayman and the other plaintiffs.

In a statement distributed by The Guardian to the New York Times, Snowden on Monday welcomed the ruling. "I acted on my belief that the N.S.A.'s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," the Times reported Snowden as saying. "Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many."

Jaikumar Vijayan covers data security and privacy issues, financial services security and e-voting for Computerworld. Follow Jaikumar on Twitter at  @jaivijayan or subscribe to Jaikumar's RSS feed . His e-mail address is jvijayan@computerworld.com.

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