David Cole

U.S. District Court Judge Richard Leon’s decision on Monday finding that the NSA’s telephony metadata program is likely unconstitutional is a welcome and important recognition that advances in digital technology require advances in Fourth Amendment doctrine if we are to preserve the privacy that the framers sought to protect. In particular, Judge Leon reasoned that the Supreme Court’s analog-era ruling that the Fourth Amendment does not restrict the government’s access to phone “pen register” data – the numbers you call, when you call, and how long you talk – does not necessarily govern whether the NSA’s collection of all Americans’ phone records for five years constitutes an unconstitutional invasion of privacy. The sheer quantity of data that the NSA gathers – about every phone call and text that every American engages in every day, maintained in a massive NSA database for five years – coupled with the ease of collecting, storing, and analyzing that digital data by computer, makes the NSA program qualitatively different from the simple collection of phone data on a single user over a limited period of time that the Supreme Court addressed in 1979.

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Joseph Kishore

A report released Wednesday by the Obama administration’s hand-picked presidential advisory panel on the National Security Agency’s (NSA) spying programs consists of minor reforms intended to preserve and legitimize the government’s illegal operations, while strengthening safeguards against leaks like those from whistleblower Edward Snowden.

The administration’s decision to expedite the public release of the report, which was presented to the president over the weekend, comes in the wake of a US federal court decision earlier this week that referred to one of the principal domestic spying programs as “almost Orwellian.” Judge Richard Leon said that the bulk collection of telephone records of almost all US citizens is an “indiscriminate” and “arbitrary” invasion of privacy rights. The program was initiated under the Bush administration and has been strongly defended by Obama.

While the report is being presented in the media as a call for major constraints on the National Security Agency (NSA), a core recommendation of the advisory panel is that this program should continue, if in a somewhat altered form. It calls for Congress to enact legislation to “end such storage [of telephone records] and transition to a system in which such meta-data is held privately for the government to query when necessary for national security purposes.” This transition should be carried out “as soon as reasonably possible.”

It suggests a “general rule” that any programs involving the government collection and storage of “mass, undigested, non-public personal information about individuals” should be “narrowly tailored to serve an important government interest.”

In other words, mass data collection in violation of Constitutional rights, including the telephone records program, should be carried out when possible by private companies working for the government, and the government should collect this information directly only when it is in its “interest” to do so.

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Andrew P. Napolitano

Donetsk, Ukraine graffiti reads "Big Brother is watching you,"
a reference to government surveillance in George Orwell's dys-
topian classic "1984." (CC/Борис У)

“Almost Orwellian” – that’s the description a federal judge gave earlier this week to the massive spying by the National Security Agency (NSA) on virtually all 380 million cellphones in the United States.

In the first meaningful and jurisdictionally grounded judicial review of the NSA cellphone spying program, U.S. District Court Judge Richard Leon, a George W. Bush appointee sitting in Washington, D.C., ruled that the scheme of asking a secret judge on a secret court for a general warrant to spy on all American cellphone users without providing evidence of probable cause of criminal behavior against any of them is unconstitutional because it directly violates the Fourth Amendment.

Readers of this page are familiar with the purpose of that Amendment and the requirements it imposes on the government. The Framers intended it to prevent the new government in America from doing to Americans what the British government had done to the colonists under the king.

The British government had used general warrants – which are not based on individualized probable cause and do not name the place to be searched or the person or thing to be seized – to authorize British soldiers to search the colonists wherever they pleased for whatever they wished to seize.

The reason for the Fourth Amendment requirement of individualized probable cause and specificity in the warrant is to prevent the very type of general warrant that the NSA has claimed is lawful. The reason for preventing general warrants is that they have become an instrument of tyranny.

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