Judge: NSA domestic phone data-mining unconstitutional

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WASHINGTON — A federal judge said Monday that he believes the government’s once-secret collecting of domestic phone records was unconstitutional, setting up likely appeals and further challenges to the data-mining revealed by classified leaker Edward Snowden.

U.S. District Judge Richard Leon said the bulk collection of metadata — phone records of the time and numbers called without any disclosure of content — was an apparent violation of privacy rights.

His preliminary ruling was in favor of four plaintiffs challenging the National Security Agency program, but Leon limited the decision only to their case.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, an appointee of President George W. Bush. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

Leon’s ruling said the “plaintiffs in this case have also shown a strong likelihood of success on the merits of a Fourth Amendment claim,” adding “as such, they too have adequately demonstrated irreparable injury.”

However, he put off enforcing his order barring the government from collecting the information, pending an appeal by the government.

There was no immediate indication about whether the Obama administration would challenge the decision.

White House spokesman Jay Carney referred questions to the Justice Department, saying he was unaware of the ruling that broke during his daily briefing with reporters.

The NSA admitted earlier this year it received secret court approval to collect vast amounts of metadata from telecom giant Verizon and leading Internet companies, including Microsoft, Apple, Google, Yahoo and Facebook.

Explosive revelations earlier this year by Snowden, a former NSA contractor, triggered new debate about national security and privacy interests in the aftermath of the September 2001 terrorist attacks.

In particular, Snowden’s revelations led to more public disclosure about the secretive legal process that sets in motion the government surveillance.

The case before Leon involved approval for surveillance in April by a judge at the Foreign Intelligence Surveillance Court (FISC), a secret body that handles individual requests for electronic surveillance for “foreign intelligence purposes.”

Verizon Business Network Services turned over the metadata to the government.

Last month, the U.S. Supreme Court refused to take up the issue when it denied a separate petition to hear the metadata dispute, which was filed by the Electronic Information Privacy Center.

Prior lawsuits against the broader NSA program also have been unsuccessful.

Days after the Snowden disclosure in June, Larry Klayman of the conservative group Judicial Watch and three other individual plaintiffs filed legal challenges in the D.C. federal court as Verizon customers.

The left-leaning ACLU also filed a separate, pending suit in New York federal court.

Under the Foreign Intelligence Surveillance Act of the 1970s, the secret courts were set up to grant certain types of government requests– wiretapping, data analysis, and other monitoring of possible terrorists and spies operating in the United States.

The Patriot Act that Congress passed after the 9/11 attacks broadened the government’s ability to conduct anti-terrorism surveillance in the United States and abroad, eventually including the metadata collection.

In order to collect the information, the government has to demonstrate that it’s “relevant” to an international terrorism investigation.

However, the 1978 FISA law lays out exactly what the special court must decide: “A judge considering a petition to modify or set aside a nondisclosure order may grant such petition only if the judge finds that there is no reason to believe that disclosure may endanger the national security of the United States, interfere with a criminal, counterterrorism, or counterintelligence investigation, interfere with diplomatic relations, or endanger the life or physical safety of any person.”

Initially, telecommunications companies such as Verizon, were the targets of legal action against Patriot Act provisions. Congress later gave retroactive immunity to those private businesses.

The revelations of the NSA program and the inner workings of the FISC court came after Snowden leaked documents to the Guardian newspaper. Snowden fled to Hong Kong and then Russia to escape U.S. prosecution.

The case is Klayman v. Obama (13-cv-881).

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