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NSA Cell Phone Metadata Case Set for Nov. 4; Won't Be Televised

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By William Peacock, Esq. on September 17, 2014 5:32 PM

We were wondering when we'd hear more on the D.C. Circuit's NSA cell phone metadata case, especially after the Second Circuit allowed C-SPAN to livestream oral arguments in a parallel case earlier this month.

The answer? On November 4, unlike its sister circuit to the north, the D.C. Circuit will not be televising the revolution, reports Politico. Audio recordings are typically posted on the D.C. Circuit's website after oral arguments, however.

Here's a recap of the lower court's anti-NSA opinion and what's at stake in this case:

D.C. District Court: NSA Bulk Metadata Collection Is Unconstitutional

Judge Richard Leon's opinion in the district court was long on style and passion, but gave short shrift to precedent.

In 1979, the U.S. Supreme Court held that a person does not have a reasonable expectation of privacy in the numbers that he voluntarily transmits to the phone company (and which were intercepted, sans warrant, via a pen register).

That case would seem to be controlling here. In fact, two other district court judges, one in New York (the Second Circuit case) and one in Idaho, both held that their hands were tied by Smith v. Maryland. But Judge Leon disagreed, noting that the Supreme Court's holding came long before the rise of cell phones:

"When do present-day circumstances -- the evolution of 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 does not apply? The answer, unfortunately for the government, is now."

Judge Leon labeled the data collection program "almost-Orwellian" before concluding, "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."

Judge B. Lynn Winmill, the district court judge in the Idaho case, called Judge Leon's opinion "a template for a Supreme Court opinion" in his reluctant opinion in favor of the NSA, reports The Wall Street Journal.

What's at Stake? Maybe Nothing

One issue at stake in this case is obvious: domestic surveillance of pretty much every American citizen's cell phone.

And there's the possibility of a circuit split, thanks to the multiple parallel appeals cases. While two other trial court judges disagreed with Judge Leon's opinion because of precedent, the Second Circuit seemed to be skeptical of the government's arguments in favor of the NSA program. We'll have to wait and see what happens with the written opinion, as well as the D.C. Circuit and possible Ninth Circuit appeals, but surprisingly, this all might be much ado about nothing.

As we noted after the Second Circuit held its oral arguments, there's an expiration date on the NSA program: June 1, 2015. However, President Barack Obama has previously stated that he might want to extend the program in a more limited fashion. If so, the looming mootness issue might not arise at all.

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