Fourth Amendment v. NSA


National Security Agency HQ, Fort Meade, MD

Score one point for the Fourth Amendment.

A federal District judge on Monday ruled that a massive and highly controversial National Security Agency (NSA) program geared at collecting millions of bits of American telecommunication records is likely unconstitutional, and could fail a legal challenge brought by conservative activists on Fourth Amendment grounds preventing “illegal search and seizures”.

In his decision, U.S. District Court Judge Richard Leon stated that:

“the court concludes that plaintiffs have standing to challenge the constitutionality of the government’s bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim (of unlawful search and seizure), and that they will suffer irreparable harm absent…relief”.

While the judge issued a preliminary injunction against the program, he also halted it to allow a Justice Department appeal. Federal officials have previously stated in public that several (conveniently, without stating which) potential threats have been averted in part because of the NSA spy program.

Seemingly, however, they failed to provide the judge with specifics, despite having the opportunity to disclose them behind closed doors. Reason would dictate that demonstrating actual success in preventing attacks would levy significant favor in support of the program, but as of yet, the government is mum. Says the judge:

“Given the limited record before me at this point in the litigation — most notably the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have 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”.

While the NSA has publicly been adamant that the data it collects is restricted to non-identifier info, American’s suspicion has remained high, on both sides of the aisle. A big question is this: Do the ends (preventing terrorist’s attacks) justify the means (recording data on millions of Americans, individual-specific or not?)

If they do, why doesn’t the government make its case? Detail imminent threats that have been thwarted. If they don’t, the Supreme Court appears poised to take up the issue in the future as other cases make their way through the docket. They’ll determine if boundaries have been crossed.

In the court of public opinion, Americans like the idea of preventing attacks (obviously), but given very public kerfuffles surrounding the likes of Facebook and other’s privacy settings, are wary of anything that suggests, hints, or has passing resemblance to invasions of privacy. That particular branch of libertarianism still carries significant weight.

As it should.


About Michael Haugen

Michael Haugen is a full-spectrum conservative and recent graduate from Eastern Washington University (BS Biology). His main interests in politics and public policy center around health care, education and tax reform. He'll be returning to EWU in 2014 to complete a Master's degree in Public Administration. Follow him on Twitter: @HaugenTRA


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