Tuesday, December 17, 2013

NSA metadata program likely violates Fourth Amendment

That is the key finding in Judge Richard Leon's 68-page ruling on Klayman v. Obama. Judge Leon did not, however, take any action in this regard, as he expects the government to appeal the ruling to the D.C. Court of Appeals (and from there, the case is likely to go to the Supreme Court, whether or not Leon's ruling is upheld). Nonetheless, critics if the NSA program--on the Left and Right--are thrilled with the ruling; they see it as a big win by and large, despite the fact that the program will continue unabated, at least for a while.

Really, Judge Leon's opinion here was a study in judicial restraint, something that should rightly earn him a great deal of praise. He ruled only on what was directly before him, limited himself to the Fourth Amendment issue, and ultimately found that the plaintiff's case was so strong in this regard as to make it unnecessary to go beyond it. For make no mistake, there are still a number of other arguments as to why the NSA has overstepped its authority. But with regard to the Fourth, Judge Leon concludes with the following:
For reasons I have already discussed at length, I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their telephone metadata covering the last five years, and the NSA’s Bulk Telephony Metadata Program significantly intrudes on that expectation. Whether the program violates the Fourth Amendment will therefore turn on "the nature and immediacy of the government's concerns and the efficacy of the [search] in meeting them."
He goes on to note that the government failed to demonstrate how the NSA program is either effective or necessary as a means of meeting such concerns, that there is no evidence to show the collection of metadata has had significant benefits for NSA operations in the least.

In terms if these specifics alone, it's a good ruling, a very strong ruling. Again, Judge Leon shows significant restraint here. He ruled on only the (what appears to be) obvious violations of the Fourth, granted an injunction that would put a halt to the NSA program, but stayed the order pending the obvious appeal. It's excellent judicial work, a point driven home by the extent of the analysis in his filed opinion. For while he rules only on a limited basis, Judge Leon delves deep into the specifics of the case and establishes a number of other bases for future legal actions and decisions that will likely be touched on again in the Court of Appeals or the Supreme Court as this case moves forward.

One of these is the issue of minimization procedures, supposedly established according to FISA guidelines and approved by the FISA Court. I've discussed this requirement previously. As I noted then, the reason for having minimization procedures is to make sure that any of the surveillance programs undertaken by the government under FISA would be severely limited in scope and duration:
Why is this [a requirement for minimization procedures] in here? Simple, when FISA was passed in 1978, Congress did not want the Act to become the basis for a nationwide and continuous surveillance program, nor did it want ancillary information obtained by federal agencies used for purely political purposes (again, the whole point of FISA). So in this regard, any program that collects data on U.S. citizens is supposed to be close-ended, not open-ended, and non-vital information is supposed to be dumped, forthwith. FISA is specifically about not creating a permanent database on things like phone records. It doesn't matter if the data is regular run-of-the-mill data or if it is "metadata," the federal government is not supposed to be holding on to it, period.
In this most recent ruling, Judge Leon quotes--in footnote 23--from an order released by Judge Walton of the FISA Court, with regard to the minimization procedures established by the NSA and approved by the FISA Court for the NSA domestic surveillance program:
"Since the earliest days of the FISC-authorized collection of call-detail records by the NSA, the NSA has, on a daily basis, accessed the BR metadata for purposes of comparing thousands of non-RAS approved telephone identifiers on its alert list against the BR metadata in order to identify any matches. Such access was prohibited by the governing minimization procedures under each of the relevant Court orders."
And:
"In summary, since January 15, 2009, it has finally come to light that the FISC's authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses BR metadata. This misperception by the FISC existed from the inception of its authorized collection in May, 2006, buttressed by repeated inaccurate statements made in the government's submissions, and despite a government-devised and Court-mandated oversight regime. The minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the FISC have been so frequently and systematically violated that it can fairly be said that this critical element of the overall BR regime has never functioned effectively."
This order was from March of 2009; Judge Walton remains as the presiding Judge on the FISA Court, a position he has held since early 2007. What he is saying here--and the reason why Judge Leon is quoting from him--is that the NSA has basically ignored the minimization procedures that they, themselves, proposed! In essence then, there have been no functioning minimization procedures since the inception of the program in 2006. And again, what this means is that the NSA has been using FISA--and the FISA Court--to do exactly what FISA was supposed to prevent.

Judge Leon lays all of this out, but does not act on it specifically, though one can certainly infer all of this made him doubt the arguments put forth by the Administration in this case. But more importantly, the lack of functional minimization procedures can be construed to invalidate the NSA program on its face. This isn't a constitutional violation, it's a simple violation of the law. And when the case moves forward to higher courts, there's a fair chance of this issue being raised again. If it is, there will be serous fallout within the Administration and the NSA (which is probably one of the reasons why Judge Leon limited his ruling to the Fourth Amendment issue, in my opinion).

Hopefully, the proverbial heads will soon roll.

Cheers, all.