When U.S. District Judge Richard Leon issued his preliminary injunction against the NSA's phone record database yesterday, part of hisanalysis (which I will discuss in my column tomorrow) concerned whether the collection of telephone metadata counts as a "search" under the Fourth Amendment. But Leon also considered whether such a search might be "reasonable," even without an individualized warrant, because of its usefulness in preventing terrorist attacks. That part of the analysis was pretty straightforward, since the government had presented no evidence that the database has been useful in preventing terrorist attacks:
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. In fact, none of the three "recent episodes" cited by the Government that supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency....Given the limited record before me at this point in the litigation—most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics—I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.
Leon's conclusion on this question is striking, since you'd think the Obama administration would be highly motivated to show that the database has been crucial in saving lives. If the government cannot muster a single plausible example, how can such a massive invasion of privacy possibly be justified?...more
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