By / January 3, 2014

NSA phone surveillance may be unconstitutional

In an article in The Guardian, Friday 7 June 2013, Glenn Greenwald and Ewen MacAskill publishes the story of an…

© IQoncept / Fotolia
U.S. District Judge Richard Leon ruled on the basis of Fourth Amendment privacy protections that NSA phone surveillance may be unconstitutional
© IQoncept / Fotolia

In an article in The Guardian, Friday 7 June 2013, Glenn Greenwald and Ewen MacAskill publishes the story of an earlier contractual agent, Edward Snowden, with the US National Security Agency, NSA, about the Prism program, that, with the the approval of the Foreign Intelligence Surveillance Act (FISA) court, can tap to user data from all over the world from internet service providers. The Washington Post followed up with an article the following day, explaining how the system actually works.

16 December 2013, Judge Richard Leon of U.S. District Court for the District of Columbia issued a preliminary injunction. This, pending appeal, would bar secret services from gathering certain data. Data already collected should also be destroyed.

Overviews

Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”

Annotations by Cornell University Legal Information Institute

Analysis

Judge: NSA’s collecting of phone records is probably unconstitutional / by Ellen Nakashima and Ann E. Marimow, Washington Post, December 16, 2013
A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

Judge Questions Legality of N.S.A. Phone Records / Charlie Savage, New York Times, December 16, 2013
In a 68-page ruling in Klayman vs. Obama, Judge Richard J. Leon of the District of Columbia said the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution.

NSA phone surveillance program likely unconstitutional, federal judge rules / Spencer Ackerman and Dan Roberts, theguardian.com, Monday 16 December 2013
Dragnet ‘likely’ in breach of fourth amendment, ruling relates to collection of Americans’ metadata

Stakeholder views

American Civil Liberties Union
Judge Rules Against NSA on Phone Data Collection, 16 Dec.. 2013
(The American Civil Liberties Union is currently litigating a similar legal challenge in New York, ACLU v. Clapper)

Cato Insitute
D.C. Court: Smith Is Not Good Law / by Jim Harper, 16 Dec., 2013
“In debates about the NSA’s mass surveillance of all our phone calling, pro-government lawyers have often tried to play a trump card called Smith v. Maryland. Smith is a 1978 Supreme Court decision as right for our times as laws requiring public buildings to provide spittoons”

If You Think Smith v. Maryland Permits Mass Surveillance, You Haven’t Read Smith v. Maryland / Jim Harper, 20 Aug., 2013

Electronic Frontier Foundation (EFF)
In Historic Ruling, Federal Judge Declares NSA Mass Phone Surveillance is Likely Unconstitutional, by Trevor Timm, 16 Dec. 2013

Case law

U.S. District Court for the District of Columbia
Klayman v. Obama, Read the full ruling at Guardian here  or at New York Times here

U.S. Supreme Court
Smith v. Maryland, 442 U.S. 735 (1979)

Certiorari to the Court of Appeals of Maryland. No. 78-5374. Argued March 28, 1979. Decided June 20, 1979.


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