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If NSA data collection is ruled unconstitutional, will it stop?

A D.C. Circuit Court judge released a blockbuster ruling this week, saying that the massive collection of Americans’ telephone call and location data by the National Security Agency is probably in violation of the Fourth Amendment’s prohibition of unreasonable searches and seizures by government agencies. In fact, he found the violations likely enough that he issued a preliminary injunction against the program.

This was among a number of challenges to the constitutionality of this and other government surveillance programs that were revealed last June by former NSA analyst Edward Snowden. This one was brought by a pair or conservative legal activists who claim their privacy have been substantially violated by the surveillance, and that their privacy rights outweigh any interest the federal government might have in such a colossal collection of personal data.

The judge agreed. Over the past five years, he found, the bulk collection of identifying call information called “metadata” has served purposes that are doubtful at best. While the NSA claims that no calls are being recorded, the collection of this metadata is pretty intrusive. It allegedly includes records of virtually every American -- including everyone we called and where we were calling from over the past five years.

From a massive computer bunker, the NSA has the ability to crunch that data into a relatively full picture of any particular person’s relationships, movements and activities -- especially if they use a smart phone with a GPS tracker and they use it to “check in” at various locations online.

The government insists its purpose is to prevent terrorism. The judge expressed serious doubts, however, about whether the massive data-haul has actually been all that effective at achieving that goal.

The injunction is on hold at the moment so that the NSA can appeal. Even if the program should be definitively found to violate the Fourth Amendment, however, would the NSA stop using it? As we discussed in our last post, the chief judge of the 9th Circuit court of appeals has recently bitterly accused federal prosecutors nationwide of routinely engaging in constitutional violations, if only because they face few consequences when they do.

If the intrusive collection of phone metadata isn’t an efficient way to catch terrorists, it could easily be repurposed to investigate Americans for a variety of federal crimes. We might be none the wiser.

Source: ABA Journal, “NSA phone-data collection program likely unconstitutional, judge says,” Mark Hansen, Dec. 16, 2013

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