Larry Klayman, a conservative activist, who represented himself and several others, and a man with neither criminal convictions nor any remote connections to terrorists, has just put a small legal missile through the hull of the US government’s domestic surveillance programme. A federal court has ruled that the National Security Agency’s (NSA) seven-year-old phone-data collection programme, hoovering up data for virtually the entire population, is “significantly likely” to be in breach of the Fourth Amendment’s ban on unreasonable searches.
Judge Richard Leon, district judge of the District of Columbia, in granting Klayman an injunction wrote that James Madison “would be aghast” at the degree of privacy invasion, and ordered the authorities to desist and destroy what records they had. He overruled a 1979 decision that the right to privacy did not extend to call metadata – the basic details of who called whom and when, but not the content of calls. The 1979 reasoning, which the state relied on defending over 15 challenges to date, is that callers do not have a reasonable expectation of privacy as they automatically share such details with phone companies.
That logic had been overtaken, Leon argues, citing the wide scope of the NSA programme and changing role of phones and technology, 34 years on, in people’s lives. He cited a landmark 2012 Supreme Court ruling that it was unconstitutional for police to use a GPS tracking device to monitor a suspect’s public movements without a warrant. And he pointed out that the government “does not cite a single instance” in which the data collection “actually stopped an imminent attack.” Because of the “significant national security interests at stake”, he stayed his ruling to allow appeal.
The case is the first in which the issue has been ruled on outside the Foreign Intelligence Surveillance Court, which supervises the surveillance in camera, and it comes as Congress debates the controversial programme’s future. It should make their task a lot easier.