Big story. Most of you probably know this by now. A Federal Judge for the U.S. District Court in the District of Columbia granted a preliminary injunction on behalf of the plaintiffs in the Klayman case. For the uninitiated, a preliminary injunction is an order from a judge that says the defendant must stop some offending action. In this case, the defendant happens to be the National Security Agency (NSA) and the offending conduct happens to be massive spying on all American citizens. Judge Leon concluded that the actions of the NSA probably violate the Fourth Amendment, and, since the plaintiffs were likely to succeed on that claim issued a ruling saying that the NSA must stop its massive collection of metadata and to destroy metadata already in its possession collected through this bulk collection method. Metadata, if you do not already know, is data about data, information like the time and date a file was created or modified.


This case is a big, huge, massive deal. Why does it matter so much? Because the judge decided that a few private citizens, Verizon customers, had the standing (or ability) to bring this claim in federal court. He also ruled that simply because the Government has tried to convince us all we have no expectation of privacy in this data, these actions alone are not sufficient to actually destroy our expectation of privacy. Since the ruling majorly impacts all surveillance activity currently conducted by the NSA, the Judge did not immediately require enforcement of the injunction so the matter could be appealed to a higher court. This appeal will allow the Circuit Court of Appeals to make a decision and likely this case will go to the U.S. Supreme Court given its broad reach. It is possible it will not go so far but the case seems tailor-made for a Supreme Court ruling.

It is also a major decision because it casts the actions of Edward Snowden in an even more forgiving light. When media reports initially surfaced regarding the leak, many mainstream media outlets came out strongly against Mr. Snowden. As news outlets published more and more reports, and the breadth of the spying became more widely understood, Mr. Snowden gained more sympathizers. Now that this decision has come down, we can easily see a justification for his actions. This lawsuit, which resulted in a ruling that the NSA program was unconstitutional, would never have happened without Mr. Snowden’s leak. No one would have known that this program even existed. How could he be charged for exposing an unconstitutional, and therefore illegal program? The Constitution, after all, is the “supreme law of the land.” Isn’t Mr. Snowden akin to an Enron-whistleblower who simply reports illegal activity to law enforcement? When law enforcement itself is involved in the illegal activity, then it becomes increasingly more difficult to report the wrongdoing. It may be that the best place to report is through the press and the court of public opinion. Although it appears likely that Mr. Snowden violated several laws by his disclosures, he also did so to expose a program that at least one judge has ruled violates the constitution. It is not hard to see an argument for justification and amnesty after such a ruling.

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