Bruce Bialosky

A storm was created by a federal judge who ruled that the NSA is inappropriately collecting information on American citizens in violation of the fourth amendment. There has been immense reaction for and against his ruling. But no one seems to really point out the flaw in his ruling.

Federal Judge Richard Leon was appointed to his current position by George W. Bush. The person who presented the case to stop the NSA activity was Larry Klayman, who has been perceived as a right-of-center gadfly. But the people hailing the decision most were “civil liberties” groups on the left. And the visceral reaction from the right has been heavily against the ruling, led by editorial page of The Wall Street Journal.

The ruling in Klayman vs. Obama revolves around a Supreme Court ruling in Smith vs. Maryland (1979). Judge Leon called for the abandonment of the precedent set because of, in his words, the “almost Orwellian” technological developments.Leon recognizes the Supreme Court has accepted warrantless searches in certain cases where there are “special needs.” But he then states no court has recognized a “special need” “to justify continuous, daily searches of virtually every American without any particular suspicion.”

The ruling in Smith vs. Maryland established a new precedent contrary to prior cases like Katz vs. United States (1967) which established that wiretaps were improper without a warrant.In Smith, the Supreme Court ruled that a person had no reasonable expectation of privacy because “the petitioner voluntarily conveyed numerical information to the telephone company.” The people who say Judge Leon is wrong state that the ruling in Smith is precedent and that Leon will be overruled by either the Appeals Court or the Supreme Court or both.

Here is where Judge Leon’s ruling is wrong.He should have stated that the precedent was junk. Smith effectively states that if you contract with a private company to provide a product to you (in this case phone service), you have provided the government the right to have access to that information.You have given away your privacy rights.Huh?Where is the logic there?

I don’t want to totally insult the Justices who agreed with the decision or Justice Harry Blackmun who wrote it, but it seems that they either do not understand the essence of a contract between private parties or the Fourth Amendment. More specifically, where do they get off making such a ruling? This is a ruling that could only be made by people who believe that government has ever-expanding rights.

Bruce Bialosky

Bruce Bialosky is the founder of the Republican Jewish Coalition of California and a former Presidential appointee to The U.S. Holocaust Memorial Council. Follow him on Twitter @brucebialosky or contact him at