On the one hand, federal judge Richard Leon’s ruling questioned the constitutionality of the National Security Agency’s wide-spread call tracking program was relatively benign, having no practical implications. On the other hand, the ruling came at an important time for the NSA and President Obama.
Judge Leon’s ruling that the NSA’s metadata program appears to violate the Fourth Amendment was issued only three days after a review group established by President Obama delivered its report proposing over 40 changes to the federal government’s surveillance programs.
Initially, Obama was initially expected to dig through the reform proposals before Christmas and announce which ones he would adopt. However, the White House now says that the process will not be complete until sometime next month.
This delay permits Leon’s decision to have time to resonate, giving surveillance skeptics more time to pressure Obama to endorse significant reforms after Edward Snowden’s revelations regarding NSA surveillance practices.
This ruling also highlights the situation of a president who won office in part by railing against the national security state established by his predecessor trying to defend much of that establishment while also maintaining his vow to restore civil liberties and bring an end to what seemed like a permanent war on terror.
Judge Leon confirmed that his decision would not take effect while it is being appealed, an outcome which he said was inevitable. And with at least three other lawsuits related to the metadata program in the pipeline, the issue seems highly likely to be resolved by the Supreme Court. Politically speaking, Leon’s ruling could also create the impression that Obama is less concerned about privacy rights than a conservative judge appointed by former President Bush.
According to Michelle Richardson of the American Civil Liberties Union, “There have been hints of diversity of opinion in [the interagency process], with some people in the White House more pro-privacy and others less so. This is going to open up a whole new point in the debate… Hopefully, this will lead to more support for meaningful changes.”
NSA Reforms on the Horizon
President Obama has already hinted at his plans to impose greater limits on the NSA, but the details of these changes have not fully been determined. In an interview with MSNBC, Obama said, “I’ll be proposing some self-restraint on the NSA. And… to initiate some reforms that can give people more confidence.”
While Judge Leon’s ruling might alter the internal administration debate in favor of more reforms, there is no expectation that Obama will completely stop the bulk collection of calling data from US carriers. It remains a possibility that he might push for stricter limits on how long the data can be kept, or propose other ways of storing the data, instead of having the NSA hold on to it.
John Podesta, former Clinton White House Chief of Staff, is set to begin work in January as a counselor to Obama. Podesta is known for being a longtime privacy advocate and has expressed agreement with Leon’s conclusion that a 1979 Supreme Court precedent allowing police to trace a suspected criminal’s phone calls without a warrant does not authorize bulk collection of data on virtually every phone call made to, from or within the US.
Back in July, Podesta commented,
“Our smartphones with built-in GPS technology track out locations and our phone companies and Internet providers collect metadata on every call we make and every person we email… Court decisions from the pre-Internet days suggest that the information we give away voluntarily to these companies can be obtained fairly easily by the government. That legal rule may have made sense in an age before Facebook and iPhones, but we need a serious examination of whether it still makes sense today.”
This article looks at the political implications of Judge Richard Leon’s ruling on the NSA’s call tracking program.
CIPP Exam Preparation
In preparation for the Certified Information Privacy Professional/US Government (CIPP/US), a privacy professional should be comfortable with topics related to this post, including:
- Government and court access to communications (III.A.b.)
- National security and privacy (III.B.)