Why Judge Was Incorrect in NSA Case

By Bruce Bialosky

Monday, December 30, 2013

A storm was created by a federal judge who ruled that the NSA is inappropriately collecting information on American citizens in violation of the fourth amendment. There has been immense reaction for and against his ruling. But no one seems to really point out the flaw in his ruling.

Federal Judge Richard Leon was appointed to his current position by George W. Bush. The person who presented the case to stop the NSA activity was Larry Klayman, who has been perceived as a right-of-center gadfly. But the people hailing the decision most were “civil liberties” groups on the left. And the visceral reaction from the right has been heavily against the ruling, led by editorial page of The Wall Street Journal.

The ruling in Klayman vs. Obama revolves around a Supreme Court ruling in Smith vs. Maryland (1979). Judge Leon called for the abandonment of the precedent set because of, in his words, the “almost Orwellian” technological developments.Leon recognizes the Supreme Court has accepted warrantless searches in certain cases where there are “special needs.” But he then states no court has recognized a “special need” “to justify continuous, daily searches of virtually every American without any particular suspicion.”

The ruling in Smith vs. Maryland established a new precedent contrary to prior cases like Katz vs. United States (1967) which established that wiretaps were improper without a warrant.In Smith, the Supreme Court ruled that a person had no reasonable expectation of privacy because “the petitioner voluntarily conveyed numerical information to the telephone company.” The people who say Judge Leon is wrong state that the ruling in Smith is precedent and that Leon will be overruled by either the Appeals Court or the Supreme Court or both.

Here is where Judge Leon’s ruling is wrong.He should have stated that the precedent was junk. Smith effectively states that if you contract with a private company to provide a product to you (in this case phone service), you have provided the government the right to have access to that information.You have given away your privacy rights. Huh? Where is the logic there?

I don’t want to totally insult the Justices who agreed with the decision or Justice Harry Blackmun who wrote it, but it seems that they either do not understand the essence of a contract between private parties or the Fourth Amendment. More specifically, where do they get off making such a ruling? This is a ruling that could only be made by people who believe that government has ever-expanding rights.

Based on this ruling, you really have no right to privacy in a transaction between you and any private company. Let’s say you have created an email account with Google or Yahoo, and you have freely transmitted your information through those companies to a friend.Under Smith you have expectations that your government can look at those emails. Or you make purchases with your Visa or MasterCard and the government can sweep up that information – you have no expectation of privacy. Do you have privacy rights between you and your hardware store if you go there and buy some nails and hammer? Where does it stop?

The fascinating thing here is that all these companies have been required by federal law to establish privacy rights criteria.They do that when you sign up with them and then they send you a notice of their privacy rules each year.The federal government now says that Microsoft or American Express cannot share your information with third parties without your permission, but we “the government” can get to it because some judges misread the Constitution in 1979. Shame on the Wall Street Journal for accepting this improper invasion of private contracts by an invasive federal government.If anyone should defend the rights of private contracts, it should be the WSJ. Shame on them for endorsing this expansion of the rights of the government over the people.

If anyone believes I am getting soft on terrorists, disabuse yourself of that thought.This issue is not about terrorism; it just happens to be centered on activity by an organization that tells us they are protecting us from terrorists. God bless you NSA; get them all and I hope you kill them. And by the way they don’t have any rights. They are not American citizens. And if someone gets killed hanging around with them so be it. That is the risk you assume hangin’ with madmen.

That has nothing to do with our government collecting your telephone calls and keeping that information in a sweep of data. Or your emails or your credit card charges or anything about your personal life. That is why our brilliant founders insisted on the Fourth Amendment and specific warrants.They knew that if you give the government a toe, they will take your foot and then your leg and then all of you.

As the New Year approaches you should thank Judge Richard Leon for putting a big stop sign in front of the federal government.Because of Judge Leon, some of your God-given rights have been restored and as 2014 begins you are a freer American. Now hopefully our current Supreme Court will throw out their predecessors’ severely misguided ruling in Smith vs. Maryland.