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.

National Journal
Dustin Volz
Dec. 27, 2013, 8:03 a.m.

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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