Wall Street Journal - Robert Turner: Why Judge Leon's Ruling is Wrong lyrics

Monday's Klayman v. Obama decision by D.C. District Court Judge Richard Leon, ruling the National Security Agency's bulk collection of telephone metadata unconstitutional on Fourth Amendment grounds, raises interesting issues. But it is contrary to Supreme Court precedent and will likely be reversed. In June, a group led by conservative activist and lawyer Larry Klayman filed suit claiming the NSA program violated their Fourth Amendment right against unreasonable search. Their claim runs up against Smith v. Maryland (1979) when the Supreme Court held that the warrantless collection of telephone metadata—what numbers connected to what other numbers, when, and for how long—was constitutional. In Smith, the court held that Americans have no "legitimate expectation of privacy" concerning the telephone numbers they call because they knowingly give that information to phone companies when they dial a number. Relying on Smith, federal judges have approved the NSA program on 35 occasions. But Judge Leon says that Smith should be abandoned because of "almost-Orwellian" technological developments. He admits the content of telephone "metadata" has remained essentially unchanged, but there are now far more telephones—mostly cellphones, which were extremely rare in 1979. Judge Leon also acknowledges that the Supreme Court has often upheld warrantless searches in the absence of probable cause or even individualized suspicion in cases involving "special needs" beyond normal law enforcement. Yet he declares no court has ever recognized a "special need" sufficient "to justify continuous, daily searches of virtually every American citizen without any particularized suspicion." With all due respect, that's not what is going on. The NSA, authorized by law and pursuant to judicial orders, does collect from telecommunications providers vast amounts of data ("business records")—data that federal prosecutors have long been able to obtain without judicial warrants—and maintains a vast database containing these records. But there is a tremendous difference between collecting metadata and actually searching it. To authorize a search, NSA an*lysts must establish they have a "reasonable suspicion" based upon "specific, articulable facts," that the phone number being searched is a**ociated with a foreign terrorist organization. These internal NSA authorizations are then reported to various executive and legislative branch oversight bodies and to the Foreign Intelligence Surveillance Court. During all of 2012, the NSA searched roughly 300 telephone numbers via this database. Save for the owners of phones found to have been in communication with phones a**ociated with foreign terrorists, no Americans were identified by these search. The odds that an American's telephone records will be examined without a judicial warrant by law-enforcement authorities are roughly 1,000-times greater than by the NSA. One might draw a parallel with FBI fingerprint searches to match prints found on murder weapons or at crime scenes. In each such search the FBI computer may scan millions of prints in its database. But unless there is at least a partial match, the identities of the owners of those prints are not disclosed to a human being. This is not a civil-liberties violation. The controlling constitutional test for the reasonableness of a warrantless "special needs" search is that of balancing competing interests. Judge Leon acknowledges that the types of information in telephone metadata "are relatively limited," and that seeking the identities of "unknown terrorist operatives" is "of the highest order of magnitude." Yet when he seeks to balance the two, he seems to lose his way. Consider another, more common, type of warrantless search. Every time Americans catch a flight at a commercial airport, they first must submit to intrusive searches by federal agents without the slightest probable cause or individualized suspicion. Yet every federal court to decide the issue has held that these searches are "reasonable" and thus consistent with the Fourth Amendment (which prohibits only "unreasonable" searches). Clearly, the privacy interests infringed by airport searches are far greater than having a government computer glance through our telephone bills to make sure we have not been communicating with foreign terrorists. The disclosure of the NSA's program to collect telephone metadata and the largely uninformed debate that has ensued have been unfortunate. Politicians at both extremes have declared it "unconstitutional," with little apparent understanding either of the NSA program or the Fourth Amendment. Our enemies now know our secrets, so stopping future attacks will be more difficult. Large numbers of our fellow citizens have become outraged after being told their government is violating the Constitution. That's understandable. But based upon the information thus far available, that is not happening. Perhaps the Supreme Court will reconsider and either overturn or distinguish the 1979 Smith case. If that happens, I'm confident the NSA and other government agencies will abide by the new constitutional rule. Until then, Smith is the rule, and lower courts should obey it.