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Spot-on NSA ruling rightfully questions effectiveness of phone surveillance, privacy law expert says

By Jessica Martin

Richards
U.S. District Judge Richard J. Leon’s recent decision ruling the National Security Agency phone surveillance program unconstitutional is absolutely correct as a matter of law, said Neil M. Richards, JD, privacy law expert and professor of law at Washington University in St. Louis.

“The bulk data collection at issue in the case reveals a tremendous amount about us – who we know, who we confide in, where we go, and with whom,” he said.

“It’s exactly the sort of information that should require a warrant before the government obtains it.”

Richards was struck by Leon’s willingness to question whether this surveillance program was effective.

“All too often over the past decade, we’ve seen politicians, judges and citizens take the government at its vague word that surveillance is useful without asking the hard questions about how useful particular kinds of surveillance are, and what we are losing in exchange,” he said.

“Asking hard questions may seem disrespectful or like it is getting in the way of officials doing their job, but it is essential. In a democracy, the people (and their elected and appointed representatives) have a duty to ask what the government is doing in their name, and what the costs of those actions are.

“The Snowden revelations started a conversation in this country and around the globe about what kinds of government surveillance are appropriate in a democracy, and I think this case (which will likely end up in the Supreme Court) will be an essential part of that conversation.

Richards said it is unfortunate that the specter of terrorism has caused most people to be highly deferential to any question of national security at the same time that the digital revolution is permitting kinds of surveillance that would have been politically and technically impossible as recently as 15 years ago.

“It’s also revealed — as Judge Leon noted — that many of our legal rules and precedents presuppose a nondigital, analog world,” Richards said.

“I’m hopeful that our conversation about these questions will produce not just litigation but legislation that is tailored to our new technologies. These new laws should allow government surveillance where it is appropriate, but place meaningful constraints on the government’s ability to peer into the lives of ordinary people. These sorts of issues are exactly why we have laws – a set of rules that allow the government limited powers to do its job, but which protect the vital civil liberties our system of self-government is supposed to cherish.”

MEDIA CONTACTS
Jessica Martin
Associate Director of University News, Director of News for Law and the Brown School
(314) 935-5251
jessica_martin@wustl.edu
EXPERTS @ WUSTL
Neil M. Richards
Professor of Law
(314) 935-4794
nmrichards@wulaw.wustl.edu