Premature Celebration: Today’s Anti-Spy Ruling Is Merely Symbolic For Now

The news industry exploded today with headlines trumpeting a federal judge’s declaration that the National Security Agency’s phone data collection program was “unconstitutional”. The strongly worded anti-NSA opinion was quotation gold, but it won’t have much real-world impact for now. “It’s one judge’s view, and it will certainly be appealed,” writes former NSA general counsel, Stewart Baker, to me in an email.

Judge Richard Leon issued a tentative injunction against the NSA bulk collection of phone call records (“meta-data”), but it was stayed pending the decision of higher courts. Leon predicts it will take “at least six months” for the appeals court to evaluate his decision.

Every civil liberties organization and their pet hamster has a case pending to end the NSA mass spying programs. Kirk Opsahl, a senior staff attorney for the Electronic Frontier Foundation, tells me that any meaningful change at the NSA will likely wait for the Supreme Court, which could decide to bundle all of the pending suits into a single case.

Civil liberty groups may get an early present if an appeals court upholds today’s declaration of unconstitutionality, and the Supreme Court decides not to stay an injunction while it figures out its own decision. But, don’t bet your Bitcoin on that one. “In the worst case, yes, it would require that the program be revamped or scrapped, but only if it stands up on appeal,” concludes Baker.

For those angling for a bit of optimism, Opsahl says that the significance of today’s decision is that “it shows what the difference is between a one-sided secret court that only hears the government’s argument and an open court that hears arguments from both sides”.

Previously, most cases about the legality of the NSA were decided in secret courts with the deck stacked in favor of government lawyers.

Now, given the increasing public scrutiny, it’s equally as likely that President Obama himself, or Congress, could enact their own reforms before the Supreme Court even hears the case. Obama’s task force on NSA reform will hopefully be made public early next year, right around the time that Congress considers one of several reform bills.

Until then, put away the James Clapper PiƱatas and Statue of Liberty costumes, there’s a long road to go. For more info, see our own Alex Wilhelm’s analysis of Today’s case.