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Stephen L. Carter

Fighting the NSA With Footnotes

Judge Richard Leon's ruling against the NSA is both welcome and unlikely to last.

I think there is a fair chance that the U.S. Court of Appeals will overturn yesterday's order by U.S. District Judge Richard J. Leon that the National Security Agency halt its telephone metadata collection program and destroy its existing records. Leon's preliminary injunction, handed down in an angry opinion in the case, Klayman v. Obama, orders President Barack Obama's administration to end the program within six months unless a higher court should reverse him.

What has already gained attention -- quite properly -- is the judge's refusal to follow Smith v. Maryland, a 1979 Supreme Court decision holding that citizens lack a reasonable expectation of privacy as to the list (as against the content) of their phone calls. So settled and accepted is Smith that legal experts routinely assert that "it is well established that individuals do not have an expectation of privacy in the phone numbers they call."