Why a judge derailed phone records spying

At least for now, the mass collection of phone records is an unreasonable search under the Constitution, federal judge Richard Leon ruled today.

He granted a preliminary injunction sought by two men — Larry Klayman and Charles Strange — saying they were likely to prevail in their constitutional challenge. But he stayed the injunction pending a certain appeal from the Obama administration.

Even so, it’s refreshing to have a government entity — any government entity at this point — openly discussing the vacuuming of phone records, at least before the issue goes back to a secret court.

The judge acknowledged, however, that only a secret court could hear the arguments against the spying and records gathering. Nonetheless, he gave the government a good scolding.

“Virtually all of the government’s briefs and arguments… explain how the government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism — in which the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third largest carriers. Yet in one footnote, the government asks me to find that plaintiffs lack standing on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possible serve its putative function. Candor of this type defies common sense and does not exactly inspire confidence!”

The judge called the phone records search “almost Orwellian.” He said “the rapid and monumental shift toward a cell-phone centric culture means that the metadata from each person’s phone ‘reflects a wealth of detail about her familial, political, personal, professional, religious, and sexual associations.’ Records that once would have revealed a few scattered tiles about a person now reveal an entire mosaic — a vibrant and constantly updated picture of the person’s life.”

He said the trends give people a greater expectation of privacy, not a lesser one.

Here’s his decision: