A federal judge has taken a big step toward the conclusion that the National Security Agency’s bulk collection of Americans’ telephone usage data is unconstitutional.
Richard Leon, of the U.S. District Court in Washington, D.C., sharply argued in a ruling that Americans’ expectations of privacy, protected under the Fourth Amendment, probably have been violated.
The government likely will appeal, and the case could get to the Supreme Court. But it already has created an outlet for fresh public debate. Civil libertarians on the left and the right have hailed the decision. Others are skeptical that Leon’s ruling, in a case spawned by two individuals’ lawsuits, will survive.
Referring to the spy agency’s practice as “almost Orwellian,” Leon challenged its defenders’ reliance on a 1979 Supreme Court case (Smith v. Maryland). Telephone technology in American culture has so radically changed, he noted, that the earlier case is essentially irrelevant.
Perhaps most damaging to the Obama administration’s defense of the NSA’s ability to do massive counter-terrorism data-scraping, Leon wrote that there has been an “utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics.”
Americans should take comfort that the pendulum may now have a better chance of swinging toward a proper balance between national security and individual freedom.