On March 5, 1976, Patri­cia McDo­nough was robbed.  She report­ed the crime to the Bal­ti­more police. Soon after, McDo­nough began receiv­ing threat­en­ing and obscene phone calls from a man pur­port­ing to be the rob­ber.  At one point, the caller asked her to step onto her porch.  Short­ly after she did, she saw a 1975 Monte Car­lo dri­ving slow­ly past her home.  She recalled see­ing that same car near the crime scene. She report­ed the tag num­ber to the police, enabling them to iden­ti­fy the own­er as Michael Lee Smith.

The police asked the tele­phone com­pa­ny to install a pen reg­is­ter — an elec­tron­ic device that records all num­bers called from a par­tic­u­lar tele­phone line – to mon­i­tor Smith’s home phone.  The device helped police deter­mine that Smith had placed the offen­sive calls to McDo­nough, lead­ing to his arrest and conviction.

Smith appealed, argu­ing that the pen reg­is­ter had vio­lat­ed his Fourth Amend­ment pro­tec­tion against unrea­son­able search­es and seizures.  The case reached the Supreme Court, which val­i­dat­ed the government’s use of the pen register.

The 1979 rul­ing in Smith v. Mary­land  forms the basis for the government’s claim that its pro­gram to mon­i­tor every American’s cell­phone activ­i­ty is con­sti­tu­tion­al.  Accord­ing to the gov­ern­ment, the same pow­er that Bal­ti­more police used to col­lect infor­ma­tion from a par­tic­u­lar tele­phone that belonged to a par­tic­u­lar indi­vid­ual sus­pect­ed of hav­ing com­mit­ted a par­tic­u­lar crime allows the gov­ern­ment to col­lect all man­ner of infor­ma­tion from every cell­phone belong­ing to peo­ple sus­pect­ed of no crime on the the­o­ry that some­one some­where must be doing some­thing wrong.

That line of rea­son­ing suf­fered a set­back on Mon­day when Fed­er­al Dis­trict Court Judge Richard J. Leon ruled that plain­tiffs in the case known as Klay­man v. Oba­ma had raised a legit­i­mate con­sti­tu­tion­al chal­lenge to the NSA’s “Bulk Tele­pho­ny Meta­da­ta Pro­gram.”  Smith v. Mary­land, Leon held, was no defense against legal challenge.

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 thir­ty-four years ago that a prece­dent like Smith sim­ply does not apply?  The answer, unfor­tu­nate­ly for the gov­ern­ment, is now [p. 45].

Leon is a bit of an icon­o­clast, who has issued high-pro­file rul­ings in the past.  Ear­li­er this year, he struck down a rule on deb­it card swipe fees pro­mul­gat­ed by the all-pow­er­ful Fed­er­al Reserve.  His is not the last word on that case or on this one.  He essen­tial­ly acknowl­edged that, issu­ing an order that the NSA shut the pro­gram down and destroy its exist­ing files, but also pre­vent­ing enforce­ment of his order until an appeals court reviews it [p. 67].

The case was among those brought as the result of doc­u­ments leaked by for­mer gov­ern­ment con­trac­tor Edward Snow­den, which made the secret NSA pro­gram pub­lic. Plain­tiffs Lar­ry Klay­man, founder of a con­ser­v­a­tive group called Judi­cial Watch, and Charles Strange, the father of an Amer­i­can killed in Afghanistan, filed their law­suit last June, alleg­ing that the gov­ern­ment was con­duct­ing “a secret and ille­gal scheme to inter­cept and ana­lyze vast quan­ti­ties of domes­tic tele­phon­ic com­mu­ni­ca­tions” (p. 8) that uncon­sti­tu­tion­al­ly cap­tured their phone records.

The gov­ern­ment coun­tered that the pro­gram was legit­i­mate, autho­rized by statute and con­duct­ed con­sis­tent with war­rants issued by the secret For­eign Intel­li­gence Sur­veil­lance Court (FISC).  Judge Leon held that the pro­gram could nev­er­the­less be chal­lenged on Fourth Amend­ment grounds.  That amend­ment, which asserts “right of the peo­ple to be secure in their per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures,” cre­ates a “rea­son­able expec­ta­tion of pri­va­cy” [p. 44] for Klay­man and Strange, Leon wrote.

The gov­ern­ment argued that the NSA pro­gram did not vio­late this expec­ta­tion, any­more than it had vio­lat­ed Smith’s pri­va­cy when it used a pen reg­is­ter to deter­mine that he was harass­ing the woman he’d robbed.  Judge Leon disagreed.

The Court in Smith was not con­front­ed with the NSA’s Bulk Tele­pho­ny Meta­da­ta pro­gram.  Nor could the Court in 1979 have ever imag­ined how the cit­i­zens of 2013 would inter­act with their phones … I am con­vinced that the sur­veil­lance pro­gram now before me is so dif­fer­ent from a sim­ple pen reg­is­ter that Smith is of lit­tle val­ue in assess­ing whether the  [the pro­gram] con­sti­tutes a Fourth amend­ment search [pp. 46–47].

He cit­ed numer­ous dif­fer­ences, includ­ing the fact that the pen reg­is­ter was used on Smith’s phone for only a few days, while the NSA’s pro­gram “will go on for as long as Amer­i­ca is com­bat­ing ter­ror­ism, which real­is­ti­cal­ly could be for­ev­er!” [p. 46]  He also not­ed the vast­ly dif­fer­ent rela­tion­ships that the Bal­ti­more police and the NSA have with phone companies.

The rela­tion­ship between the police and the phone com­pa­ny in Smith is noth­ing com­pared to the rela­tion­ship that has appar­ent­ly evolved over 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 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 [p. 48, empha­sis in original].

These records not only are more volu­mi­nous and last­ing than those reviewed in Smith, they also dis­close a good deal more per­son­al information.

Records that once would have revealed a few scat­tered tiles of infor­ma­tion about a per­son now reveal an entire mosa­ic – a vibrant and con­stant­ly updat­ing pic­ture of the person’s life [p. 54].

And they are unprece­dent­ed in scope.

No court has ever rec­og­nized a spe­cial need suf­fi­cient to jus­ti­fy con­tin­u­ous, dai­ly search­es of vir­tu­al­ly every Amer­i­can cit­i­zen with­out any par­tic­u­lar­ized sus­pi­cion [p. 58].

The pre­sumed “spe­cial need” assert­ed by the gov­ern­ment is to quick­ly acquire infor­ma­tion so as to fore­stall a poten­tial attack.  The gov­ern­ment, Judge Leon said, had not sub­stan­ti­at­ed that need.

The gov­ern­ment does not cite a sin­gle instance in which analy­sis of the NSA’s bulk meta­da­ta col­lec­tion actu­al­ly stopped an immi­nent attack, or oth­er­wise aid­ed the gov­ern­ment in achiev­ing any objec­tive that was time-sen­si­tive in nature [p. 61].

All of this led Judge Leon to con­clude that the pro­gram vio­lates the Constitution’s Fourth Amend­ment protections.

The pro­gram infringes on “that degree of pri­va­cy” that the Founders enshrined in the Fourth Amend­ment.  Indeed, 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 grad­ual and silent encroach­ments by those in pow­er,” would be aghast  [p. 64].

All of this, of course, is the opin­ion of a sin­gle judge.  His rul­ing is sub­ject to appeal.  Not all judges share his unstat­ed assump­tion that the words of the Con­sti­tu­tion are to be tak­en seri­ous­ly and not con­tort­ed to suit society’s shift­ing tastes.  Oth­er jurists may be less skep­ti­cal of the government’s claims that they need our phone records to keep us safe.  Nor will they nec­es­sar­i­ly share Leon’s Madis­on­ian sen­si­bil­i­ties or his alarm at gov­ern­men­t’s “grad­ual and silent encroachments.”

The relent­less growth of gov­ern­ment pow­er rests on the assump­tion that it is a benef­i­cent force.  Gov­ern­ment argues that we prof­it when it slips its con­sti­tu­tion­al leash.  It can be trust­ed with pow­er because it wields it to cre­ate a bet­ter soci­ety.  It can be trust­ed with our mon­ey because it can do nobler things with it than we would.  It can be trust­ed to micro­man­age mar­kets because it allo­cates goods and ser­vices more fair­ly and effi­cient­ly than mar­kets do. It can be trust­ed when it cur­tails our lib­er­ties because it makes us safer and more secure.

The Con­sti­tu­tion does not embody this wist­ful view of gov­ern­ment.  The Framers set out to curb its ambi­tions and scope, to restrain its impuls­es — both malev­o­lent and benign — and to pre­serve lib­er­ty by erect­ing a wall to lim­it and con­tain its power.

The con­tem­po­rary vision of an activist gov­ern­ment that is free to pur­sue its every good inten­tion ran into the wall of the Con­sti­tu­tion this week.  Let’s hope this isn’t just a momen­tary setback.