Court: NSA spying likely unconstitutional

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A federal judge on Monday ruled that the government's collection of data on all U.S. phone calls is likely unconstitutional, comparing the National Security Agency (NSA) program to George Orwell's 1984.

Judge Richard Leon of the U.S. District Court in Washington, D.C., granted a request from conservative activist Larry Klayman to block the NSA's phone data collection. But he said that in light of the "significant national security interests at stake in this case and the novelty of the constitutional issues," he will stay the order, pending the government's appeal. 

It is the first time a court has ruled against the agency's collection of phone records, which was revealed in documents leaked by Edward Snowden.

The American Civil Liberties Union, the Electronic Frontier Foundation and dozens of other groups have brought separate lawsuits challenging the program, which the NSA has defended as necessary to protect national security.

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The Justice Department is reviewing the decision, according to spokesman Andrew Ames. 

Leon rejected the government's argument that a 1979 Supreme Court ruling, Smith v. Maryland, means that people have no Fourth Amendment protection for "metadata" such as phone numbers, call times and call durations. He concluded that the NSA's perpetual collection of millions of phone records isn't the same as the small-scale and targeted collection in the Smith case.

"The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user is unlike anything that could be conceived in 1979," he wrote. 

He also concluded that the explosive growth of smartphones means that collecting "metadata" today gives the government much more insight into people's private lives than it did in 1979. 

"The ubiquity of phones has dramatically altered the quantity of information that is available and, more importantly, what that information can tell the government about people's lives," he wrote.  

"Put simply, people in 2013 have an entirely different relationship with their phones than they did thirty-four years ago."

Leon noted that courts have rejected previous challenges to NSA spying because the plaintiffs in those cases were unable to show whether they had actually been monitored. But because the NSA has now admitted collecting records on all U.S. phone calls, and the plaintiffs are phone subscribers, there can be little doubt that the NSA collected their records, Leon concluded.