Federal Judges Historic Ruling Declares NSA Mass Phone Surveillance is Likely UnconstitutionalTrevor Timm The case, Klayman v. Obama, undermines the governments assertions that its bulk surveillance program, which collects virtually every phone record in the United States, is legal. Judge Richard Leon found the [b]ulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy, which, in turn, likely results in a violation of the Fourth Amendment. Judge Leon stayed the order pending appeal because of the significant nature of the decision. Both EFF and the ACLU have active lawsuits challenging the same program, before other judges. But make no mistake: the judges language in condemning the program was unequivocal. I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval, he wrote. He continued: the author of the Constitution, James Madisonwould be aghast at the NSAs surveillance program. Judge Leon also rejected the idea courts other than the secret, one-sided FISA court could rule on the programs constitutionality: While Congress has great latitude to create statutory scheme like FISA, it may not hang a cloak of secrecy over the Constitution. Judge Leon wrote: The question before me is not the same question that the Supreme Court confronted in Smith and is a far cry from the issue in this case. He correctly differentiated between surveillance of the limited information on one person and the ability of todays law enforcement to take in mass amounts of information over long periods of time and map out a persons life through every single connection made through a telephone: Judge Leon emphasized that the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. He continued: Put simply, Judge Leon concluded, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago. This analysis crystalizes the problems with the governments over reliance on Smith, recognizes the limits on that holding in relation to all sorts of digital surveillance we see today as a result of the expansion of technology. But in perhaps his most important point when he discussing privacy in the digital age, Leon explained that because of an increased awareness of the ability of law enforcement to track our movements via technology, we have a more reasonable expectation of privacy, not less: While we still have a long way to go before the NSA mass phone records program is permanently declared unconstitutional once and for all, this is a truly historic ruling and an important first step in ensuring Americans privacy is protected in the digital age. 