National Security Agency

The National Law Journal's Zoe Tillman reports on the likely appeal of U.S. District Judge Richard Leon's decision that the National Security Agency's surveillance most likely violates the Fourth Amendment. The D.C. Circuit's makeup could be quite different by the time an appeal is ready to be heard: "Three new judges appointed by President Obama could be sitting on the D.C. Circuit by the time a panel is chosen to review Leon's 68-page ruling, giving the court a new dynamic."

The New York Times reports that the White House has asserted the state secrets privilege in two federal cases pending in California. The plaintiffs are challenging the constitutionality of the National Security Agency's warrantless surveillance programs. "The government said that despite recent leaks by Edward J. Snowden, the former N.S.A. contractor, that made public a fuller scope of the surveillance and data collection programs put in place after the Sept. 11 attacks, sensitive secrets remained at risk in any courtroom discussion of their details — like whether the plaintiffs were targets of intelligence collection or whether particular telecommunications providers like AT&T and Verizon had helped the agency," The Times reports.

The Washington Post reports on the recommendations of the panel, appointed by President Obama, to curb surveillance by the National Security Agency. Instead of the NSA collecting virtually all of Americans' phone records, the panel "urged that phone companies or a private third party maintain the data instead, with access granted only by a court order," The Post reports. The panel also suggested a ban on warrantless NSA searches for Americans’ phone calls and e-mails legally collected in a program at foreigners overseas, The Post further reports. The Obama administration says it will reveal proposed changes to surveillance, including taking into account the panel recommendations, next month.

While there has been a lot of celebration of Judge Leon's opinion that the National Security Agency's collection of telephone metadata likely violates the federal Constitution, Just Security's Steve Vladek argues that the district judge faces being reversed by the D.C. Circuit on his holding that the plaintiffs’ Administrative Procedure Act "claim (challenging the metadata program on statutory grounds) is precluded by section 215 itself."

The result? "Then that will bring the statutory question to the fore–for the Court of Appeals to either decide as a matter of first impression or send back to Judge Leon," Vladek writes. "And if, as many (including me) believe, the program can’t be reconciled with the statute, then we’ll end up in the same place (the program in its present form will be enjoined), without ever having to answer the thorny and far more far-reaching Fourth Amendment question concerning twenty-first century expectations of privacy in metadata."

The Wall Street Journal has this helpful Q&A about the meaning of Judge Richard Leon's ruling that the National Security Agency has probably violated the U.S. Constitution by monitoring most phone calls in the United States.

A federal judge ruled today that the National Security Agency's surveillance of most phone calls made in the United States or to the United States is likely unconstitutional, Politico reports: "U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks."

Politico further reports: "Leon’s 68-page ruling is the first significant legal setback for the NSA’s surveillance program since it was disclosed in June in news stories based on leaks from former NSA contractor Edward Snowden. The metadata program has been approved repeatedly by numerous judges on the Foreign Intelligence Surveillance Court and at least one judge sitting in a criminal case."

The judge granted a preliminary injunction but promptly stayed it to allow for an appeal.

President Barack Obama promises that "I'll be proposing some self-restraint on the NSA" in an interview with Chris Matthews on MSNBC, according to Politico. However, the president provided few details on what form that would take.

The president also said the NSA is reasonable in the amount of domestic surveillance it conducts in terms of "not reading people's emails, not listening to the contents of their phone calls" but that the NSA's foreign surveillance needs to be curbed more.

The Washington Post has another revelation on the basis of leaker Edward Snowden's materials: The National Security Agency is "gathering nearly 5 billion records a day on the whereabouts of cellphones around the world."

The Post further reports: "The NSA’s capabilities to track location are staggering, based on the Snowden documents, and indicate that the agency is able to render most efforts at communications security effectively futile."

Gigaom reports on a petition filed by several major media companies, including The New York Times, Politico and Bloomberg, against the Foreign Intelligence Surveillance Court decision that the Media Freedom and Information Access Clinic at Yale Law School does not have standing to seek access to the court's decisions authorizing the National Security Agency to collect millions of phone and e-mail records. Among other arguments, Gigaom reports "the media companies also point out that they have fewer resources to defend free speech and civil liberties issues in court, and must rely on newer groups like the Yale law clinic to help lift a legal torch they carried for most of the 20th century: 'while [the media companies] feel that news of their ‘death’ has been greatly exaggerated, shrinking budgets at large media companies have inevitably meant a drop-off in First Amendment litigation from those outlets.'"

The Guardian has another scoop based on documents leaked by Edward Snowden: during the second term of the Bush presidential administration the National Security Agency memorialized that it tapped the phone calls of 35 world leaders after getting their numbers from a U.S. official in another department. The secret document stated no actionable intelligence arose from all that surveillance, The Guardian also reported.