Monday, December 16, 2013

New precedents for the surveillance state

Important opinion out of the federal courts today. Judge Richard Leon ruled the NSA's metadata sweep of all the phones is unconstitutional, kicking what little breath was left out of the body of the Fourth Amendment. Or as the Hon. Judge Leon put it more formally:
[T]he question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
In other words, the decades old precedent the NSA built their surveillance permissions on is no longer applicable to the way we communicate today.

Judge Leon ordered the NSA to cease immediately and to destroy all their stored records. Which doesn't mean much since he stayed the order pending appeal. Which will surely go all the way to SCOTUS. Which will no doubt take several years. Still a high judicial rebuke of the program is far from nothing. Good news for anyone who cherishes the right to privacy.

Charlie says we should thank the hapless Ed Snowden and his champion Glenn Greenwald for this breakthrough, no matter how annoying you might find them. He's right. I was never bowled over by their revelations. I've been paying attention for a really long time and don't think I've learned anything new from Glenn and Ed. But they did succeed in keeping the story in play in the media for long enough to make it public knowledge among the less engaged citizenry. I doubt it would have made it this far in the courts without the worldwide public attention.

And yes, that Larry Klagman is going to get the credit for this case makes me want to vomit too.

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