A federal judge's ruling Monday that the National Security Agency's bulk telephone metadata collection is “likely” unconstitutional is wrong on the law and the facts. It conflicts with the opinions of 15 other federal judges who have sat on the Foreign Intelligence Surveillance Court and approved the NSA's metadata collection 35 times since 2006.
U.S. District Judge Richard Leon has stayed his order to give the U.S. Court of Appeals for the D.C. Circuit the opportunity to reach its own judgment. But in the post-Snowden, anti-NSA climate pervading Washington, there is reason for concern that this opinion will amplify the caterwaul of those seeking to dismantle vital U.S. counterterrorism capabilities.
The telephone metadata collected by the NSA consists of transactional business records revealing only which phone numbers have called which numbers, when and for how long. It includes no other subscriber information, and it doesn't enable the government to listen to anyone's calls. This database enables intelligence agencies to discover quickly whether any phone numbers of known foreign terrorists have been in contact with numbers in the United States, a vital input in counterterrorism investigations. It is informative even when it reveals a lack of contacts.
In Leon's view, however, the Fourth Amendment prohibits Congress from authorizing the bulk metadata collection and the focused querying of those records, even where the president has determined its necessity, and it is approved every 90 days by a federal judge. No case law remotely supports this breathtaking conclusion. Liberal use of exclamation marks is no substitute.
Leon argues that the U.S. Supreme Court's 1979 decision in Smith v. Maryland upholding the warrantless use of pen registers — devices that record numbers dialed — has become obsolete in this age of multifunction smartphones. But district judges are not empowered to declare the death of binding Supreme Court precedent. The calling-record data collected by the NSA is almost exactly the same data the police collected in Smith: the phone numbers that Michael Lee Smith called and the dates and times of those calls.