In a ruling Monday questioning the constitutionality of the National Security Agency's bulk collection of phone records, U.S. District Court Judge Richard Leon bluntly came down on the side of privacy. Some excerpts:
— "There is the very real prospect that the (NSA) program will go on for as long as America is combatting terrorism, which realistically could be forever!"
— "I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy."
— "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."
Leon referred to a 1979 Supreme Court ruling, Smith v. Maryland, that the government has cited in arguing that no one has an expectation of privacy for the telephone data that phone companies keep as business records. The court ruled then that police didn't need a warrant to obtain such phone records, but Leon said technology has changed dramatically since then. He wrote:
— "When do present-day circumstances — the evolutions in the government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not a apply? The answer, unfortunately for the government, is now."
Again referring to the Smith case, he wrote: "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived of in 1979."
— "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systemic and high-tech collection and retention of personal data on virtually every single citizen for the purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgment of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."
And mocking the government contention that it would be a burden to comply with any court order that requires the NSA to remove the plaintiffs from its database, he wrote:
— "Of course, the public has no interest in saving the government from the burdens of complying with the Constitution! Then the government frets that such an order 'could ultimately have a degrading effect on the utility of the program if the injunction is this case precipitated successful requests for such relief by other litigants.' ... I will leave it to other judges to decide how to handle any future litigation in their courts."