In the wake of the attacks on September 11, 2001, President George Bush instituted perhaps the largest and most aggressive expansion ever of domestic surveillance. It is especially noteworthy, then, that one of his judicial appointments has issued an injunction against the National Security Agency (“NSA”) based on the conclusion that the wholesale and warrantless collection of domestic telephone records, including metadata, evidently violates the Fourth Amendment to the Constitution. The Fourth Amendment prohibits unreasonable searches and seizures, and metadata – which includes information about who someone has called, on what date, at what time, for how long, and from what location – now appears to come within the constitutional protection from such government searches and seizures.
Importantly, the ruling by Judge Richard Leon of the Federal District Court in the District of Colombia concerns mainly conduct under the direction of President Barack Obama that continued and even expanded what President Bush first imposed largely in secret. In other words, the apparent overreaching by spy agencies has become a bi-partisan issue.
These recent revelations about the widespread and invasive domestic surveillance provide a sobering reminder that our most cherished civil rights and civil liberties require constant vigilance. This is precisely why Judge Leon ruled as he did. It is also why the American Civil Liberties Union is already pursuing separate cases across the nation and why Republican Senator Rand Paul will likely be filing a class action against the NSA in the near future.