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Perhaps some sanity on NSA surveillance


A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist*, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.

“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,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

Yep. The Fourth Amendment seem pretty clear, as soon as you think of email and browsing history as "papers and effects":

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Back to WaPo:

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful.

Snowden's reaction:

Which is insane when you think about it. If the people are to be sovereign, there cannot be secret law.
“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” said Snowden, who has received temporary asylum in Russia, where he is seeking to avoid U.S. prosecution under the Espionage Act for leaking NSA documents. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.

Which seems to refute my "fleet in being" concept, thankfully.

All of which is grounds for hope. Of course, we've have our hopes dashed before; Federal Judge Anna Diggs Taylor declared that Bush's program of warrantless surveillance was illegal, and two years later the Democrats, and Obama, granted retroactive immunity to the telcos who would have been prosecuted under it.

So, we've seen it before. But maybe Leon will be Son of Sirica. You never know!

NOTE * Democrats, you suck.

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