Judge Orders NSA to Stop Collecting Phone Records

Bush appointee cites Fourth Amendment, stays injunction pending appeal.

A demonstrator dresses as President Barack Obama during a protest against National Security Agency surveillance on Oct. 26, 2013 in Washington, D.C.
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U.S District Court Judge Richard Leon ruled Monday the National Security Agency must discontinue its dragnet collection of phone records.

In a 68-page ruling Leon said Freedom Watch founder Larry Klayman's lawsuit against the program is likely to succeed on Fourth Amendment grounds and found Klayman and four other plaintiffs would suffer irreparable harm if the injunction was not granted.

Leon significantly answered two questions he posed during a Nov. 18 preliminary injunction hearing, deciding he does have the authority to hear the case and that plaintiffs do have standing to challenge the program.

[FLASHBACK: Leon Lectured DOJ Attorneys: 'All Hands 24/7. No Excuses']

Justice Department attorney James Gilligan told Leon during the November hearing he lacked authority to evaluate NSA programs, which are already overseen by the Foreign Intelligence Surveillance Court. Gilligan also argued the plaintiffs lack standing because they are Verizon Wireless customers, not customers of Verizon Business Network Services, the corporate entity specified in an officially validated FISC order leaked in June by Edward Snowden.

Leon ruled the Foreign Intelligence Surveillance Act, which established the FISC, "[does not] contain any language expressly barring all judicial review of third party claims," selecting the argument made by Klayman instead of the DOJ position.

The judge also ruled "the government wants it both ways" by refusing to admit Verizon Wireless records are collected while simultaneously describing the massive breadth of phone record collection.

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"The government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint)," Leon ruled. "Curiously, the government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it 'creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks.'"

Proceeding to knock down the legal foundation cited by the government, Leon dismissed the relevance of the Supreme Court's 1979 decision in Smith v. Maryland. In that case the court found a criminal defendant did not have a reasonable expectation of privacy over a list of phone numbers he dialed within a two-day period. The ruling is a key pillar of the government's legal argument for its present-day phone record collection and was cited by Justice Department lawyers.

"[T]he Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones," Leon said.

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Leon also rebutted official claims the NSA's phone record collection has effectively stopped terror attacks during its seven-year existence.

"[T]he government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature," Leon wrote.

Leon stayed implementation of his order to allow the government to first appeal it. The phone record collection was initiated during the presidency of George W. Bush and is supported by President Barack Obama.

The NSA declined to comment on the ruling. "I don't have anything for your story," spokeswoman Vanee Vines told U.S. News.

Klayman could not be reached for immediate comment.

In New York, U.S. District Court Judge William Pauley is also considering an injunction request against the NSA phone record program. That case is brought by the American Civil Liberties Union. Pauley heard arguments Nov. 22 and ACLU legal fellow Brett Max Kaufman, one of the attorneys in court for the hearing, said Pauley – like Leon – seemed skeptical of the government's reliance on the Smith v. Maryland decision.