US judge says NSA's phone spying is likely unlawful

The US government’s gathering of Americans’ phone records is likely unlawful, a judge ruled on Monday and ordered the suspension of the collection of data on two phone company customers who sued the Obama administration.

In a significant challenge to the spying authority, US District Judge Richard Leon in Washington D.C. wrote that the government’s programme likely violated Americans’ right to be free of unreasonable searches. “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,” Leon wrote, citing earlier court precedent.

The US Department of Justice was reviewing the ruling. “We believe the program is constitutional as previous judges have found,” department spokesman Andrew Ames said in a statement.

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Leon suspended his injunction against the programme “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues” pending an expected appeal by the government.

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The judge ordered the government to stop collecting data about two Verizon Communications Inc customers who had sued. They were Larry Klayman, a lawyer who founded Freedom Watch public interest organization and Charles Strange, described in court documents as the father of a cryptologist technician for the National Security Agency who was killed in Afghanistan in 2011. Verizon , which was the first phone company to have its involvement in the programme revealed, declined to comment on the ruling.

The British newspaper The Guardian reported in June that a US surveillance court had secretly approved the collection of millions of raw daily phone records, such as the length of calls and the numbers that are dialed. The data collected do not include actual conversations, US officials said. Details of the programme were revealed after leaks by former National Security Agency contractor Edward Snowden.

Civil liberties advocates have called the database an intrusion on privacy and they sued to end it, while the government has said the ability to search data going back seven years is crucial to fighting militant groups such as Al Qaeda.

Leon expressed skepticism of the programme’s value, writing that the government could not cite a single instance in which the bulk data actually stopped an imminent attack. “I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” he wrote.

That is important, he added, because for the programme to be lawful, the government must show its effectiveness outweighs privacy interests. Greg Nojeim, senior counsel at the Center for Democracy and Technology, a nonprofit group in Washington, D.C., described the decision as “a game-changer.” Nojeim said, “It means that the NSA bulk collection program is skating on thin constitutional ice.”

In defending the data collection, U.S. Justice Department lawyers have relied in part on a 1979 ruling from the U.S. Supreme Court that said people have little privacy interest when it comes to records held by a third party such as a phone company.

Leon, an appointee of Republican President George W. Bush who sits in Washington, D.C., wrote that the latest circumstances were simply different. “The government, in its understandable zeal to protect our homeland, has crafted a counterterrorism program with respect to telephone metadata that strikes the balance based in large part on a 34-year-old Supreme Court precedent, the relevance of which has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable,” he wrote.

Reuters