Sorry, but I have too many other things on my plate right now to dig into this, even though it’s clearly an important decision which may eventually make its way to the U.S. Supreme Court.

A federal judge in D.C. has found parts of the NSA metadata surveillance program to violate the 4th Amendment.  The judge issued a preliminary injunction, but stayed his decision pending appeal.  While many people are taking the decision as obvious, in fact the Judge had to weave his way around Supreme Court precedent and other court decisions to the contrary.  Celebrations that the decision will hold up are premature.

Here is part of Professor Orin Kerr’s take on it:

In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll comment on the persuasiveness of its analysis (or lack thereof, in this case — Judge Leon’s opinion has several major flaws, in my view).

According to Judge Leon, the United States Supreme Court’s decision in Smith v. Maryland is no longer good law because “present day circumstances” are so unlike the facts of Smith v. Maryland that the Supreme Court’s legal reasoning “simply does not apply.” That is, Ludge Leon compares the facts of the one case, Smith, with the facts of the NSA program as a programmatic whole, and he finds that the facts of the entire NSA program are so different from the facts of Smith that the Supreme Court’s legal reasoning need not be followed….

Because of these four factors, Judge Leon concludes, he “cannot possibly” follow the Supreme Court’s decision in Smith v. Maryland. Instead, Judge Leon concludes that individuals have a “very significant expectation of privacy” against the aggregated collection and He then turns to the next Fourth Amendment step, reasonableness, and concludes that the NSA’s bulk metadata program is unreasonable because it does not survive a cost/benefit balancing: It is invasive, and yet Judge Leon does not think the NSA telephony metadata program is sufficiently effective to satisfy the Fourth Amendment.

Judge Leon recognizes that his holding conflicts with the reasoning of other district courts, but he expresses confidence that he is correct and that James Madison would be “aghast” at the NSA’s telephony metadata program.

The entire decision is here.


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