U.S. District Court Judge Richard Leon ruled yesterday that the NSA collection of metadata is likely unconstitutional under the 4th amendment (Klayman et al., v Obama et. al.). The most notable paragraph:
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘the degree of privacy’ that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast.” (p. 64)
It is an interesting decision (for example, on page 49, Leon describes the technology used to store and analyze metadata as “almost-Orwellian.” On page 61, when questioning the efficacy of the program, he notes that “the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”). The footnotes are interesting as well (e.g., an analogy to the Beatles in note 36).
It will likely be some time until the decision works its way through the process–I imagine it will end up at the Supreme Court. You can find the complete decision here.