by Nicholas Alexiou
In a potentially significant ruling, Judge Richard Leon of the U.S. District Court for the District of Columbia has found that the National Security Agency’s (NSA) bulk collection of phone metadata program likely violates the Fourth Amendment.
In Klayman et al. v. Obama et al., Plaintiffs Larry Klayman (founder of the conservative Judicial Watch and Freedom Watch) and Charles Strange (father of a Michael Strange, a slain Cryptologist Technician with Navy SEAL Team VI, who has been a vocal opponent of President Obama) allege, in part, that the NSA collection program violates the First, Fourth and Fifth Amendment of the U.S. Constitution. They sought a preliminary injunction that would prohibit the NSA from collecting the plaintiff’s call records under the existing collection program, require the destruction of all records already collected, and prohibit the “querying” of any metadata already collected.
Judge Leon has found that plaintiffs have standing to challenge the NSA’s program, regardless of whether the program was in accordance with the rulings of the Foreign Intelligence Surveillance Court (FISC), and that the plaintiffs have shown both “a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.” Therefore, Judge Leon granted, in part, plaintiff’s motion for a preliminary injunction; but recognizing the “significant national security interests at stake . . . and the novelty of the constitution issues” the injunction is stayed pending an appeal. Finding sufficient evidence to grant the preliminary injunction on Fourth Amendment grounds, Judge Leon did not address either the First or Fifth Amendment arguments.
In analyzing the Fourth Amendment question, Judge Leon notes that the scope and technological sophistication of the NSA program far surpasses any other governmental surveillance program previously examined by the judiciary. In 1979, the Supreme Court ruled in Smith v. United States that an individual had no legitimate expectation of privacy in the numbers they dialed on their phone, for they were voluntarily submitting them to the telephone company. Therefore, a pen register installed by the police without a warrant was not barred by the Fourth Amendment as it did not constitute a “search.”