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Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court Intervention Ine... Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court I... Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court Interv... Judge Rules NSA Phone Sur...

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Tech

Judge Rules NSA Phone Surveillance Is Legal. Is a Supreme Court Intervention Inevitable?

Yes, you’re not crazy—it was ruled “likely unconstitutional” last week. The conflicting rulings will continue their creep through the legal system, and possibly the Supreme Court.

(PHILIPPE HUGUEN / GETTY IMAGES)

photo of Dustin Volz
December 27, 2013

A federal judge in New York has deemed the National Security Agency's bulk collection of phone records legal on grounds it is a necessary and effective response to global terrorist threats.

U.S. District Court Judge William Pauley said the agency's phone metadata collection "represents the Government's counter-punch" to terrorist threats observed since Sept. 11, 2001, by "connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network." Pauley, citing the controversial section 215 of the Patriot Act, granted the federal government's motion to dismiss a challenge brought to the courts by the American Civil Liberties Union and similar groups after details of the programs came to light following disclosures from Edward Snowden.

The 54-page ruling comes less than two weeks after D.C. District Court Judge Richard Leon issued an opinion blasting the NSA's bulk data collection as "almost Orwellian" and likely unconstitutional. The differing rulings make it more likely that an Appeals Court—and, eventually, the Supreme Court—will determine the fate of the agency's surveillance practices. Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., said after the release of the Leon's ruling that the Supreme Court should ultimately decide the legality of the NSA's programs.

 

But Pauley, a Clinton appointee, said "the question of whether that program should be conducted is for the other two coordinate branches of Government to decide." He defended the sweeping grabs of millions of phone records as necessary because "the cost of missing such a thread (revealing of a terrorist plot) can be horrific."

"The right to be free from searches and seizures is fundamental, but not absolute," Pauley wrote. "Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness."

He continued:

Every day, people voluntarily surrender personal and seemingly-private information to trans-national corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection. There is no evidence that the government has used any of bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks. While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.

The ACLU said it plans to appeal the decision.

"We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government's surveillance, and misapplies a narrow and outdated precedent to read away core constitutional protections," said Jameel Jaffer, ACLU deputy legal director. "As another federal judge and the president's own review group concluded last week, the National Security Agency's bulk collection of telephony data constitutes a serious invasion of Americans' privacy."

President Obama said at his end-year news conference that he will "make a pretty definitive statement about all of this" in January, although he indicated serious overhaul of the NSA was unlikely. Congress has also introduced a number of bills aimed to rein in the NSA's bulk data collection techniques.

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