A federal judge has ruled that a lawsuit filed over the NSA’s bulk collection of cell phone metadata violates the Fourth Amendment, but that ruling was stayed immediately to give the government the chance to appeal it to a higher court. But the language in the ruling is very important and spot on.
The government relies largely on a 1979 Supreme Court ruling called Smith v Maryland, which upheld the use of a so-called pen register to gather data on which numbers were being called by a particular phone without a warrant. But Judge Richard Leon dismissed the relevance of that precedent:
[T]he question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now…
“[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. 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 in perpetuity, was at best, in 1979, the stuff of science fiction.”
Let’s hope this is upheld on appeal.