Big national security news yesterday: a federal court judge has ruled that the NSA’s Section 215 metadata collection program is an unconstitutional violation of the Fourth Amendment. TechDirt has a great wrap-up of Judge Leon’s opinion, but more than the excellent legal analysis on display, the case is one of the first big demonstrations of how the federal judiciary is being brought into the surveillance discussion post-Snowden. The secretive structure of FISA Court, and the difficulty – if impossibility – of getting those cases into the Supreme Court or out into the sunshine made it very easy for the the courts to avoid judging the constitutionality of broad government surveillance.
Just last year in Clapper v. Amnesty International, the Supreme Court was able to side-step today’s question by holding that a group of international lawyers and journalists had no standing to challenge the FISA Amendments Act of 2008 because they could prove no harm. The narrow majority deferred to the FISA Court’s ability to enforce the Fourth Amendment’s privacy guarantees, an assertion that has proven to be ridiculous. Snowden’s revelations have changed Clapper‘s standing equation, and this may force the Supreme Court’s hand.
After today, it appears all three branches of government may have a say in the future of the Fourth Amendment, and it seems likely they won’t be in agreement. Involving the Third Branch in an active dialog about surveillance is essential not only because it can clarify the scope of Fourth Amendment but also because it may be in a position to break a separation of powers stalemate between Congress and the President. In the end, the steady stream of lawsuits challenging the NSA’s activities may end up having a bigger legal impact than any congressional theatrics.