On Monday, a federal district court judge ruled that the National Security Agency's sweeping collection of phone record data is likely an unconstitutional violation of the Fourth Amendment to the U.S. Constitution. Any Founding Father around to read that decision might respond with: "Duh."
Judge Richard Leon poured through the lengthy jurisprudence on the Fourth Amendment, which protects Americans against "unreasonable searches and seizures," and could not wed the amendment with what the NSA has been doing.
"The basic purpose of this Amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials," the court ruled in a 1967 case involving a person whose home was searched by San Francisco municipal officials without a warrant.
Citing that case, Carara v. Municipal Court of the City and County of San Francisco, Leon wrote, "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the founders enshrined in the Fourth Amendment."
Surely it does.
The argument for the constitutionality of this massive phone record data collection rests upon Smith v. Maryland, a 1979 case in which the Supreme Court ruled that people had no expectation of privacy in the records kept by phone companies. But Leon reasoned that a) phones are used differently today and produce enough data to compile a profile of each user, something not possible in 1979, and b) the government's collection and keeping of all the data is itself unreasonable.
"No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion," he wrote.
Exactly. The state has not, and never should have, that power. All Americans should hope the appellate courts agree.