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U.S. District Court Judge Opens Door on Fourth Amendment and NSA Metadata Collection

Politico:  A federal judge ruled Monday, December 16, 2013 that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely unconstitutional. U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks…Judge Leon’s 68-page opinion is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. For seven years, the metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and found constitutional by at least one judge sitting in a criminal case.”

  • See also via EFF - Landmark Decision Important Beyond NSA Phone Records Collection: “…Critically, Judge Leon’s opinion recognized that relying on the Supreme Court’s 1979 decision in Smith v. Maryland to look at new forms of electronic surveillance was foolish. Smith ruled that a person did not have a Fourth Amendment expectation of privacy in the phone numbers he dialed since he had turned that information over to the phone company in order to make the call. Since Smith was decided, courts have extended it to defeat Fourth Amendment challenges to many forms of warrantless surveillance such as acquiring historical cell site records, information turned over to Internet companies like Twitter, and even customer records held by a utility. So when defending the NSA’s surveillance, the government naturally argued that Smith controlled and no warrant was needed to access the phone records. As technology has advanced, however, courts have become leery of relying on Smith to justify endless amounts of electronic surveillance. In 2010, the Sixth Circuit Court of Appeals ruled in United States v. Warshak that people have an expectation of privacy in their email even though the messages are stored on a service provider’s server. In 2012, Supreme Court Justice Sonia Sotomayor noted in her concurring opinion in United States v. Jones that the doctrine was “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Earlier this year, the New Jersey Supreme Court ruled under its state constitution that police needed a search warrant to obtain cell site records since the expectation of privacy in a person’s location is not extinguished merely because a cell phone company has the cell site records…” 

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