I would be remiss not to comment on the recent court ruling holding the NSA phone program unconstitutional. U.S. District Judge Richard Leon held that the Fourth Amendment’s right to privacy outweighs the government’s interests in gathering and analyzing  cell phone information (see the full opinion here). This was the first judicial opinion since the release of the NSA’s secret documents by Edward Snowden.

Central to the issue was the way the NSA bulk collected everyone’s information without a warrant. Judge Leone described it as an “arbitrary invasion” that targeted “virtually every citizen.” The Government had proffered a 1979 case, Smith v. Maryland, 442 U.S. 735 (1979). The Supreme Court in Maryland had held that dialing a number was no different than calling an operating and asking to be connected. In doing so, the caller loses the expectation of privacy, so police did not need a warrant to get “pen register” data from phone companies. The Government had tried to argue that metadata collected in bulk followed the same logic.

Judge Leone distinguished Maryland by pointing out that the case only dealt with a short period of time for calls targeting a suspect in a robbery. The NSA program, instead deals with an untold number of citizens not suspected of anything over an indefinite period. Further, he noted that use of phones and the technology (and private information) involved had increased dramatically since 1979 so such standards could no longer control.

Judge Leon’s arguments make sense. Relying on the analogy of old technology is clearly flawed, though the difficulty in making those distinctions is also apparent. The emergence of cell phones as multi-purpose devices further muddies the issue. There is disturbingly little precedent dealing with cell phone data to date.

I also noticed that almost every article discussing this case pointed out that Judge Leon was appointed by President George W. Bush (eg. CNN.com). This is something that happens almost every time a federal case or judge is discussed in the media. It is as if a judge’s decisions can only be viewed through the lens of the judge’s obvious partisanship. It is a disturbing sign that partisan politics is so widely assumed in judicial decision making as to make such appointment a necessary part of the story.

Back to the case – Judge Leon granted the plaintiffs’ injunction, but stayed the order pending the Government’s inevitable appeal. This will be an interesting case to follow as it makes its way to the Supreme Court. It will certainly be a major test of the post-9/11 laws that granted the government many unbridled powers to combat terrorism and crime.