The Orwellian NSA

It took a judge appointed by President George W. Bush to call out a sweeping government surveillance program administered under President Obama as an “Orwellian” encroachment on personal liberty that probably violates the Constitution.

Judge Richard J. Leon of the Federal District Court for the District of Columbia ordered the government to stop collecting phone data from two plaintiffs named in the case. However, the judge put off the order because of "the significant national security interests at stake and the novelty of the constitutional issues."

The Justice Department, which can appeal the ruling, said it stood by the legality of the program run by the National Security Agency. But yesterday, Obama rushed out a report by an advisory panel which recommended that the NSA no longer keep a mega database of phone records of essentially all Americans.

The program — which essentially allows the government to spy on anyone it chooses — was revealed via leaks of classified material by Edward Snowden, a former NSA contractor. After the Snowden leaks, the Obama administration acknowledged that it has collected and analyzed the telecommunication records of millions of US citizens.

As reported by The New York Times, this case is the first challenge to go before a judge who is not part of the Foreign Intelligence Surveillance Court, which authorized the NSA program — and the first to succeed. One of the plaintiffs is Larry Klayman, a conservative activist who founded the group "Freedom Watch."

Carol Rose, executive director of the American Civil Liberties Union of Massachusetts, said Leon's ruling makes the case that a key underpinning of the government's rationale for the surveillance program — a privacy standard set in a 1979 Supreme Court decision — "simply isn't adequate to protect us anymore, not when the whole government is involved in really massive surveillance of all of us."

The ACLU and others have filed separate suits challenging the NSA program. In this case, the judge and the plaintiff hail from the political right. That puts a twist on stereotypical thinking about who cares more about civil liberties.

In his 68-page ruling, Leon acknowledges the delicate balance between national security and individual liberties. But he argues that the government is misguided in its reliance on a 34-year-old case — "the relevance of which has been eclipsed by technological advances and a cellphone-centric lifestyle heretofore inconceivable." The 1979 case to which he refers — Smith v. Maryland — involved a robbery victim who received threatening calls afterwards from the robber. The police installed a device to collect the numbers dialed to the victim's phone and the date, time, and duration of calls. The Supreme Court ruled that the plaintiff, who was identified as a caller, had no expectation of privacy for information exposed to a third party, such as the phone company.

The 1979 case involved the tracing of information on one telephone, for a limited period of time, to catch a specific criminal. Unlike the contents of a text message or voicemail, the content of a call was not part of the data collection. Those differences led Leon to observe, "When do present-day circumstances . . . become so thoroughly unlike those considered by the Supreme Court 34 years ago, that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now."

Today, Leon points out, there is "Orwellian-type technology" which enables the government to store and analyze phone metadata "unlike anything conceived in 1979." Phones are everywhere, and people are constantly using them to give out detailed personal information.

Leon also notes the uselessness of the government's effort when it comes to preventing terrorism. The government, he writes, couldn't provide one instance in which "the analysis of the NSA's bulk data actually stopped an imminent attack or otherwise aided the government in achieving any objective that was time-sensitive."

Leon was nominated by Bush on Sept. 10, 2001 — the day before the Sept. 11 attacks. So, surely he understands the importance of vigilance. But Leon also seems to understand the need for law to keep pace with technology.

The writers of the Constitution could not have envisioned a world of smartphones emitting constant information about citizens' private lives. But, in this judge's view, they were smart enough to envision a government that knows its boundaries when it comes to accessing it.