"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 and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.

Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.

ADDED: Orin Kerr has some sharp analysis:

Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.

Read the rest at the link.

Justice Scalia writes a dissent — in a 4th Amendment case — joined by Justices Ginsburg, Sotomayor, and Kagan.

The case, Maryland v. King (PDF), just released, is about taking a cheek swab for DNA purposes, as a routine part of booking a person the police have arrested. The dissenting opinion begins:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

ADDED: Orin Kerr notes that "Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term:"

King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

"Did Recording the McConnell Meeting Violate State Law?"

Orin Kerr takes a look at the Kentucky eavesdropping statute and this relevant commentary:

A conversation which is loud enough to be heard through the wall or through the heating system without the use of any device is not protected by KRS 526.020. A person who desires privacy of communication has the responsibility to take the steps necessary to insure that his conversation cannot be overheard by the ordinary ear.

Kerr comments:

This is arguably quite relevant: the McConnell campaign discussion apparently was loud enough to be overheard from outside the door; from what we can tell, it was recorded from a phone or video camera without audio amplification. So that language makes me think that the recording was probably not a crime. At the same time, the commentary is ambiguous. It could be read as merely making the obvious point that eavesdropping requires a device. That is, listening with your ears is different from recording with a microphone.

Obviously, you don't want to make a crime out of happening to hear a conversation on the other side of a door or wall. Perhaps there's something a little more wrong about stopping to listen, once you realize you can hear people talking. If you can hear through the wall when your neighbors talk, should you have an obligation not to pay attention or is it their responsibility to make sure you can't hear? Yet to record them seems to cross a moral line, I would think.

But what would you say about writing down quotes? Many times, I've sat in cafés and heard people talking, and I've jotted down quotes I've found interesting. And here's a specific example: Once we sat in a café at a table where we could not help overhearing a conversation. We recognized one participant as a famous professor and he was saying some extraordinarily foolish things. There's a certain word, that — if you knew how to pronounced it the way this professor did — you could say and crack me up in one second. I could have written down a lot of quotes that day and blogged them. Decency constrained me. But, surely, that could not be made into a crime in the United States.

ADDED: I'm musing about what we might consider morally wrong because it relates to what the statute might mean and also what the government may — if it chooses — criminalize.

AND: It seems to me that putting your ear against the wall/door is wrong in a way that pausing to listen when you hear talking through a wall/door is not. Here's a passage from David Rakoff's book "Half Empty":

Once during the day... I could hear Raul Rivas having sex in the office downstairs. I skittered around the apartment like a cockroach on a frying pan, trying not to make noise while desperately looking for a knothole in the crappy floorboards. Eventually I just lay down flat against the tile of the kitchen floor, listening. Lying flat against the tile of the kitchen floor listening to someone else have sex is essentially my early twenties in a nutshell.

Morally wrong, but how morally wrong?

"I want to hear about the least plausible constitutional arguments that have ever been made."

Writes Orin Kerr. He's looking for the "weirdest, strangest constitutional arguments," saying "I’m sure most of them will be arguments that trial courts readily rejected, or even never bothered to analyze it on the merits."

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted. It's harder to see them as weird when the authorities endorse them, and our whole concept of what is weird is affected by what we see respected figures accept. "I suspect that many of these claims will be made by pro se plaintiffs such as prisoners or tax protestors," says Kerr. Kooks will be kooks. Why assemble the ravings of madmen... unless the madmen are sitting on the courts?

Swartz "was deeply committed to civil disobedience and to the moral imperative of breaking unjust laws."

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

Why not eliminate faculty meetings — or most of them — and conduct business via email?

Lawprof  Jacqueline Lipton asks. The first comment nails the reason:

Isn't there some concern about having a paper trail?... I assume live faculty meetings can help maintain confidentiality better than sending emails on a controversial topic....

Even on noncontroversial topics, most lawprofs don't want the risk and pressure of putting it in writing. A few reckless graphomaniacs would dominate the discussion. Squelched passive aggressives may take revenge. 

At my law school [Orin Kerr comments] an "all faculty" e-mail exchange was recently forwarded to and published by Above the Law. That was suboptimal.

Of course, he just put that in writing, and whatever was up at Above the Law is still there to be searched for. Was it this? ("You mistake me for someone who is actually intimidated by you Dick...")