On whether the NSA program violates the Fourth Amendment to the U.S. Constitution: "The threshold issue that I must address, then, is whether the plaintiffs have a reasonable expectation of privacy that is violated when the government indiscriminately collects their telephone metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes, and investigates that data without prior judicial approval of the investigative targets. ... I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by the gradual and silent encroachments by those in power,' would be aghast."
On the DoJ's defense of the program, using the 34-year-old Supreme Court case, Smith v. Maryland: "The question in this case can more properly be styled as follows: When do present-day circumstances -- the evolutions in the government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies -- become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith does not apply? The answer, unfortunately for the government, is now. ...
"The relationship between the police and the phone company in Smith is nothing compared to the relationship that has apparently evolved for the last seven years between the government and telecom companies. ... In Smith, the court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives. It's one thing to say that people can expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government."
On the changed use of phones since the Smith case: "It is now safe to assume that the majority of people reading this opinion have at least one cell phone within arm's reach. In fact, some undoubtedly will be reading this opinion on their cell phones. Cell phones have also morphed into multipurpose devices. They are now maps and music players. They are cameras. They are even lights that people hold up at rock concerts. Put simply, people in 2013 have an entirely different relationship with phones than they did 34 years ago."
The Smith ruling and the NSA program "have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones."
On the effectiveness of the NSA program: "The government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack."
Grant Gross covers technology and telecom policy in the U.S. government for the IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is email@example.com.