Yesterday, U.S. District Judge Richard J. Leon ruled that the federal government’s bulk telephony metadata collection program likely violates the Fourth Amendment. The case, Klayman et al. v. Obama et al., is one of several pending lawsuits alleging statutory and constitutional violations in the foreign intelligence programs revealed by Edward Snowden this year. Judge Leon directed that the government stop collecting data as part of the telephony program from the plaintiffs’ phone company. He also directed that the government destroy any such data that has already been collected. He has stayed his order to enable the U.S. Court of Appeals for the District of Columbia Circuit to hear an appeal from the government out of concern for national security interests.
There are many points of the judge’s analysis on which the government might win a reversal from the appeals court. But regardless of the outcome there, the current ruling understandably excites the various communities that take up competing positions on related issues like privacy, civil liberties, national security needs, counterterrorism policy choices, and congressional effectiveness. What legal cases like Klayman offer is the rare opportunity to test whether a range of legal standards that define fundamental relationships between citizen and government are adequate for the present, rapidly evolving Information Age.
These cases are likely to take many months or years to be decided and harmonized by appellate courts. However they may ultimately clarify the range of individual liberties and rights that are protected by the Constitution and various laws, there is no guarantee that they will elucidate the factors that led successive administrations to design and implement the government’s various intelligence programs. Greater understanding of those issues is needed in the same way that the nation needed to assess and remake its military and intelligence (and in some cases law enforcement) structures following World War II, Vietnam, the intelligence excesses of the 1970s and 80s, and other milestone events of the past century.
Those reform efforts included joint, iterative legislative-executive engagements aimed at recalibrating national security institutions and processes to be more democratic, more transparent, and better prepared for coming challenges. Those objectives should be the same for the joint legislative-executive study that I proposed in my last post. Ultimately they must establish or clarify legal norms regarding government’s accumulation and use of “big data” for administrative, law enforcement, national security and other purposes. The Information Age legal landscape currently lacks those features and would be much improved by adding them.