To illustrate just how contentious this issue is, in just 11 days, two judges and a presidential panel have reached the opposite of consensus on every significant question before them, including the intelligence value of the NSA's PRISM phone program, the privacy interests at stake and how the Constitution figures in the analysis. If this continues, according to this story from The New York Times, SCOTUS will have to make the final determination . . . God help us all.
Judge William H. Pauley III of New York
Judge Upholds N.S.A.âs Bulk Collection of Data on Calls
By Adam Liptak and Michael S. Schmidt
WASHINGTON â A federal judge on Friday ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data.
In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.
The latest decision, from Judge William H. Pauley III in New York, could not have been more different from one issued on Dec. 16 by Judge Richard J. Leon in Washington, who ruled that the program was âalmost Orwellianâ and probably unconstitutional.
The decision on Friday âis the exact opposite of Judge Leonâs in every way, substantively and rhetorically,â said Orin S. Kerr, a law professor at George Washington University. âItâs matter and antimatter.â
The case in New York was brought by the American Civil Liberties Union, which said it would appeal.
âWe are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the governmentâs surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,â said Jameel Jaffer, a lawyer with the group.
A spokesman for the Justice Department said, âWe are pleased the court found the N.S.A.âs bulk telephony metadata collection program to be lawful.â
The next stops for the parallel cases are the appeals courts in New York and Washington. Should the split endure, the Supreme Court is likely to step in.
In the meantime, the decisions, along with recommendations issued on Dec. 18 by the presidential review group, illustrate the absence of agreement about the effectiveness and legality of the program, which, Judge Pauley said, âvacuums up information about virtually every telephone call to, from or within the United States.â That information is âmetadataâ â the phone numbers involved, when calls were made and how long they lasted.
The two judges had starkly differing understandings on how valuable that program is.
Judge Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials â including the former F.B.I. director Robert S. Mueller III â that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks.
Judge Pauley began his opinion with an anecdote. In the months before Sept. 11, he said, the N.S.A. intercepted seven calls made to a Qaeda safe house in Yemen from the United States. They were from Khalid al-Mihdhar, who was living in San Diego and would become one of the hijackers.
But the security agency âcould not capture al-Mihdharâs telephone number,â the judge wrote, and âN.S.A. analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.â
âTelephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,â Judge Pauley wrote.
Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. âThe government does not cite a single instance in which analysis of the N.S.A.âs bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,â he wrote.
The presidential review group took a middle ground, though it seemed to lean toward Judge Leonâs position. It said the security agency âbelieves that on at least a few occasionsâ the program âhas contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world.â But it added that its own review suggested that the program âwas not essential to preventing attacks,â and that less intrusive measures would work.
The group recommended that bulk storage of telephone records by the government be halted in favor of âa system in which such metadata is held instead either by private providers or by a private third party.â Access to the data, it said, should require a court order.
The two judges did not limit their disagreements to how well the program worked. They also drew different conclusions about its constitutionality.
âWhile robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the governmentâs bulk telephony metadata program is lawful,â Judge Pauley wrote on Friday. âThis court finds it is.â
The main dispute between the judges was over how to interpret a 1979 Supreme Court decision, Smith v. Maryland, in which the court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone. âSmithâs bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,â Judge Pauley wrote.
But Judge Leon said that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling. The governmentâs ability to construct a mosaic of information from countless records, he said, called for a new analysis of how to apply the Fourth Amendmentâs prohibition of unreasonable government searches.
Judge Pauley disagreed. âThe collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search,â he wrote.
He acknowledged that âfive justices appeared to be grappling with how the Fourth Amendment applies to technological advancesâ in a pair of 2012 concurrences in United States v. Jones. In that decision, the court unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month. The majority said that attaching the device violated the defendantâs property rights.
In one of the concurrences, Justice Sonia Sotomayor wrote that âit may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.â
The presidential review group said statements like that raised questions about whether the 1979 decision was âstill good law.â But it said its job was ânot to interpret the Fourth Amendment, but to make recommendations about sound public policy.â
Judge Pauley also said it was not for him to say where the law was heading, but for a different reason. âThe Supreme Court,â he said, âhas instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.â
As for changes in technology, he wrote, customersâ ârelationship with their telecommunications providers has not changedâ since 1979 âand is just as frustrating.â
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