Edward Snowden says judge's ruling vindicates NSA surveillance disclosures
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a 'search' within the meaning of the Fourth Amendment," id. at 736 - under the circumstances addressed and contemplated in that case - is a far cry from the issue in this case.
Indeed, the question in this case can more properly be styled as follows: 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....
Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones. For the many reasons discussed below, 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 Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.
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