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NSA phone surveillance is likely unconstitutional

Definitely unpopular
Tue Dec 17 2013, 10:08
An eye in close-up superimposted by a screen of random numbers

A UNITED STATES FEDERAL JUDGE has ruled that mass phone surveillance by the US National Security Agency (NSA) is "likely unconstitutional".

The practice has gone on for years and has been widely criticised. The Electronic Frontier Foundation (EFF) said last night that a judge has ruled it unconstitutional and that the NSA must purge a plaintiff's records to date.

"In a historic decision, a federal judge in Washington, DC today declared that the NSA's mass phone records surveillance is likely unconstitutional, ruling that the plaintiff's data should be purged from the system and prohibiting the NSA from collecting further phone records from the plaintiffs," it said.

US District Court Judge Richard Leon made the ruling in the Klayman v. Obama lawsuit filed by legal activist Larry Klayman. He stayed his ruling pending appeal. However, he was damning about the practice.

"I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval. The author of the Constitution, James Madison... would be aghast" he wrote.

"While Congress has great latitude to create statutory scheme like FISA, it may not hang a cloak of secrecy over the Constitution."

The EFF called the ruling important, saying that it represents a fresh look at telephony rules that were created three decades ago. Judge Leon also believed this, and said that comparing the case against a decision reached in 1979 was inappropriate.

"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," he said.

"Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago."

US Senator Ron Wyden welcomed the judge's decision, saying that the ruling is an important update to an antiquated legal system.

"Judge Leon's ruling hits the nail on the head. It makes clear that bulk phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said. The court noted that this metadata can be used for ‘repetitive, surreptitious surveillance of a citizen's private goings on,' that creates a mosaic of personal information and is likely unconstitutional," he said.

"This ruling dismisses the use of an outdated Supreme Court decision affecting rotary phones as a defense for the technologically advanced collection of millions of Americans' records. It clearly underscores the need to adopt meaningful surveillance reforms that prohibit the bulk collection of Americans' records."

Edward Snowden, the ex NSA contract employee who blew the whistle on surveillance, was vindicated by the decision, and he told the New York Times that he suspects that similar rulings will follow.

"I acted on my belief that the NSA's mass surveillance [programmes] would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts," he said in a statement.

"Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans' rights," he said. "It is the first of many."

NSA surveillance opponent the American Civil Liberties Union (ACLU) also popped a cork at the news, and hopes that it will be the first of many.

"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," said ACLU deputy legal director Jameel Jaffer.

"We hope that Judge Leon's thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary to bring the NSA's surveillance activities back in line with the Constitution." µ



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