The government, supported by the secret FISC, has repeatedly claimed that the 1979 Smith v Maryland court case ruled that telephone users have no expectation of privacy for telephone metadata, and that the Fourth Amendment is therefore not breached by the NSA's telephone surveillance program.
Now judge Leon has turned this on its head and rejected the argument. In a ruling Monday he stated that the technological differences between 1979 and today are so great that Smith v Maryland is no longer relevant. "The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979." What happens today "was at best, in 1979, the stuff of science fiction."
He went on to declare, "I find that plaintiffs have a very significant expectation of privacy in an aggregated collection of their metadata covering the last five years, and the NSA's Bulk Telephony Metadata Program significantly intrudes on that expectation," later concluding, "the NSA's bulk collection program is indeed an unreasonable search under the Fourth Amendment."
Based on such deliberations, "for all the above reasons," he entered "an order that (1) bars the Government from collecting, as part of the NSA's Bulk Telephony Metadata Program, any telephony metadata associated with their personal Verizon accounts and (2) requires the Government to destroy any such metadata in its possession that was collected through the bulk collection program."
Judge Leon stayed execution of his order to allow the government time to appeal, but warned that if his ruling is upheld, he will expect very rapid fulfillment. "Suffice to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions."
The Electronic Frontier Foundation (EFF) calls it "a truly historic ruling and an important first step in ensuring American’s privacy is protected in the digital age." ACLU deputy legal director Jameel Jaffer commented, "This is a strongly worded and carefully reasoned decision that ultimately concludes, absolutely correctly, that the NSA’s call-tracking program can’t be squared with the Constitution." And the New York Times printed a statement from Edward Snowden in Moscow: "I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many."
But not everyone agrees with the ruling. Orin Kerr, a research professor of law at George Washington university, is unpersuaded and thinks the judge's ruling may be overturned on appeal. "In short, my view of Judge Leon’s decision is that it’s unpersuasive in its reasoning, but that it starts a conversation that might lead to some very interesting places," he wrote in The Volokh Conspiracy.
Darren Hutchinson, a law professor who teaches constitutional law, blogged, "Procedure and remedies law, however, are probably more central to this case at the moment than the constitutional questions. Accordingly, if the DC Circuit is up to speed on remedies law, I expect a reversal without much discussion of the Fourth Amendment. We shall soon see."