Judge Leon’s Scales Tilt in the Wrong Direction

I noted how Judge Leon was in error in his decision on the NSA. Others have seconded my suggestion that he was wrong.

It is amazing that a judge in the face of clear precedent against him (Smith v. Maryland, 442 U.S. 735 (1979) which said there is no expectation of privacy in metadata held by telephone companies) can be so much in error. To start off it is important to clearly understand what is at issue here. We are talking about the collection of metadata. Metadata is: the telephone numbers used to make and receive the calls, time and date of the call, and the length of it.

Metadata does not include: Information about the contents of the call (what was said) or the names, addresses, or financial information of any party.

I told how Judge Leon seemed to have taken a big left turn when he left the ranch and went racing headlong back into the 19th Century suggesting that our Founding Fathers would be put off by what the NSA is doing. As I noted, much of what is done today would absolutely astonish any person from that era. I suggested that using the imagined reaction of those who wrote our Constitution and its Bill of Rights as a basis for a decision today is a little bit of demagoguery.

Judge Leon suggested that what he must do is to “balance the [plaintiff’s] privacy expectations against the government’s interest to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”  He said he had to examine closely “the competing private and public interests advanced by the parties.” He noted that he knew of no decision that authorized “a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion.”

He labeled this a dragnet but it seems a lot less ominous when you realize what is being gathered is just the metadata. In other words the NSA stores the records of what telephone numbers were in touch with other telephone numbers. Judge Leon calls this “daily searches of virtually every American citizen” which coupled with the words dragnet makes one think of massive groups of Americans being lined up against the walls and being patted down by the cops as they head for work.The hyperbolic description is a far cry from what it is actually happening. One would thing that if the searches we experience when we want to fly on a commercial airliner are legal the unnoticed capture of this metadata would also be fine .

The government justifies the program by stating it is used for the purpose of “identifying unknown terrorist operatives and preventing terrorist attacks.” It called it an “interest of the highest order of magnitude.” Judge Leon agreed that no more government interest is more compelling. Then out of thin air he threw a curve ball. He said this program may do that but the problem with it is that it does it faster than other methods of investigation. The same type information could be gathered by other slower means and be much more time-consuming but it would be less intrusive even though it would probably not be quick enough to meet an emergency situation .

Judge Leon went on to say that is fine because he had not seen a single case where the metadata collection stopped an imminent attack. He reviewed three cases that the government presented to him showing the use of metadata but he said the same result could have been accomplished by other means other than the massive collection of metadata being done by the NSA.

That was true because none of those cases showed an “imminent threat of terrorism.” Using the absence of any showing that the metadata had done this, he said he had “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.” How he can conclude this seems odd. He suggests that we’ve set up a system to alert us if a terrorist attack is planned and because we’ve not had such an event the system we set up must be faulty and must be taken down. Wouldn’t it be better to wait until we had such a situation prior to letting down our guard.

It seems if one has to weigh one thing against another, the scales would tip heavily in favor of the most compelling interest of preventing future terrorist attacks rather than most minimal unnoticed intrusion of capturing and storing the metadata. It appears Judge Leon wants us to wait until another attack happens. We can then go back to court and say: “Look Judge, had we had the metadata we could have stopped that attack.”