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Federal Judge Rules Some NSA Activity Likely Unconstitutional

OPB | Dec. 17, 2013 12:25 p.m. | Updated: Dec. 18, 2013 8:14 a.m.

Seal of the U.S. National Security Agency

Seal of the U.S. National Security Agency

A federal judge has determined the widespread metadata collection by the National Security Agency is likely unconstitutional. The lawsuit pitted Larry Klayman, a conservative legal activist, against the federal government. The U.S. Department of Justice will likely appeal the decision by Judge Richard J. Leon, which would take the case to the U.S. Court of Appeals for the D.C. Circuit.

The U.S. government based its case in part on a 1979 Supreme Court case which upheld that a pen register — a device that records the numbers called from a telephone line — could be used without a warrant or court order. That means, the Justice Department argued, that “no one has an expectation of privacy, let alone a reasonable one, in the telephony metadata that the telecom companies hold as business records.”

Judge Leon responded, “I disagree…The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.” The judge added that the data that “once would have revealed a few scattered tiles of information about a person now reveal an entire mosaic — a vibrant and constantly updating picture of the person’s life.”

The judge also noted that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack.”

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