Ruling by judge puts NSA data collection in question

ALBANY HERALD EDITORIAL: A U.S. District Court judges says NSA data collection likely violates constitutional right

A U.S. District Court judge has ruled that the National Security Agency’s collection of metadata in its counter-terrorism program is more than likely unconstitutional, which was good news for the two plaintiffs in the case. The judge has ordered the NSA to quit collecting data on them.

The rest of us, unfortunately, are still fair game, at least for now.

U.S. District Court Judge Richard Leon, who in earlier rulings said cigarette manufacturers couldn’t be forced by the government to include graphic photos on their cigarette packaging and that the Federal Reserve had ignored congressional intent in regard to debit card swipe fees, said he couldn’t imagine a more indiscriminate or arbitrary invasion of privacy than the NSA’s widespread collection and retention of data on citizens. He said it was likely a violation of U.S. citizens’ right against unreasonable searches and seizures.

More so, the judge said, he found no evidence that the collection of the data had led to the U.S. government thwarting a single imminent terrorist attack.

And that, the judge said, is the critical issue. For the collection of data to pass constitutional muster, the federal government has to show that the information gleaned by the program is so critical that it outweighs privacy rights, something that, at least in this court, the federal government failed to demonstrate.

So, where does that leave the program?

About where it was, except with the ice it’s skating on a bit thinner.

The judge suspended his injunction against the program, citing national security interests and an expected appeal of his decision by the government, which has indicated it will do just that.

In a report Tuesday by Reuters, an Obama administration official said that on 35 occasions 15 separate judges assigned to the secretive Foreign Intelligence Surveillance court had declared bulk communications of telephone metadata lawful. The Justice Department is relying on a 1979 ruling by the U.S. Supreme Court that said phone records held by a third party mean little privacy interest for the individual.

Whether that particular ruling should apply here is arguable, to say the least. It was made when Americans still had rotary phones and photographs were shot on film. Only those with a great deal of money had telephone access from their automobiles. The technology that people take for granted today with their cellphones was the stuff of science fiction when that ruling was made.

Reuters also quoted Gen. Michael Hayden, former director of both NSA and the Central Intelligence Agency, who said the metadata made a contribution to weaving the “tapestry of intelligence” and that judges “are not really in a good position to judge the merits of intelligence collection programs.”

That statement makes you wonder about the administration’s reliance on the opinions of the 15 judges it cited.

Meanwhile, an expert panel appointed by the Obama administration is expected to recommend that the data now being amassed by the NSA instead be retained by the telephone companies so authorities can search it when needed. Intelligence officials, who want to keep custody of the data, and telephone companies, who don’t want to bear the cost and responsibility for storing the metadata, are against the idea.

More than likely, regardless of federal intelligence officials’ opinions of the judicial branch and its abilities, the question is going to be decided by judges — nine Supreme Court justices, who, as they did in the 1979 case, will have the final say on the constitutionality of the program as it is being operated.

The Albany Herald Editorial Board