Courts split over NSA phone records: New ruling says spy program is legal

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A federal judge in New York has rejected an ACLU challenge to a controversial NSA program to collect phone records, ruling on Friday that the program does not violate the Constitution. The decision comes two weeks after the judge’s counterpart in Washington, DC, came to the opposite conclusion and described the program as “Orwellian” and a probable violation of the First and Fourth Amendments.

The split in rulings increases the likelihood that the NSA surveillance program could land before the Supreme Court next year, and provides more fodder to a debate over what the government can do with so-called “telephony metadata” — a massive database of every phone call in the company that the NSA has compiled from carriers like Verizon(s vz).

The “metadata” in question represents million of phone numbers (rather than names) but the government is able to drill down to specific identities when it makes a “query” of the database; the NSA says it only makes a relative handful of such queries every year. (New research, however, suggests raw metadata discloses more than the government suggests.)

In the new ruling (embedded below), US District Judge William Pauley III repeatedly invokes 9/11, Edward Snowden and the specter of terrorist threats in rejecting the ACLU’s claims that the metadata collection is too broad. Pauley stressed that the NSA requires all the phone records to connect dots:

Because, without all the data points, the Government cannot be certain it connected the pertinent ones … the collection of virtually all telephony metadata is necessary to permit the NSA, not the FBI, to do the algorithmic data analysis that allow the NSA to determine “connections between known and unknown international terrorist operatives.

He added:

Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.

The decision also likens the NSA’s sweep of phone records to government monitoring of Western Union transactions. It stresses that the metadata (a massive list of phone numbers and call records) belongs to the phone companies, not phone users, and likens it to police investigations based on Facebook(s fb) and other instances of the “third party doctrine” — a legal situation where people can’t claim privacy rights because they have passed on personal information to another person or company.

The ACLU promptly blasted the ruling and said it would appeal:

“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, in a statement.

The ACLU’s appeal, along with related cases, could eventually lay the table for the Supreme Court to weigh in.

The different legal outlooks are apparent in Pauley’s decision, which warned of “judicial-Monday-morning-quarterbacking” national security issues. The line did not appear to be a direct swipe against his counterpart, U.S. District Judge Richard Leon, though Pauley did make several references to Leon’s decision, which caused a stir by imposing a future injunction on the government phone program.

The Leon decision also stated that Supreme Court decisions on privacy are out of date, due in large part to the rise of cell phones. Pauley disagreed and, in a line that will likely rankle privacy advocates, writes:

“[People’s] relationship with their telecommunications providers has not changed and is just as frustrating”

Pauley’s ruling provides a rare voice of support for NSA metadata program at a time when it has been been assailed not only by Judge Leon, but by the White House’s own advisory panel. The panel, which was expected to be a mouthpiece for the President, surprised legal and security observers by proposing that the phone database should be dismantled.

Pauley appears to disagree, writing in the decision “what metadata is has not changed over time” (emphasis in original).

While Pauley’s ruling is a disappointment for civil liberties advocates, it does give reformers one cause for optimism. Specifically, Pauley questions the role of America’s secret spy court known as the Foreign Intelligence Surveillance Court.

After noting that he is answerable only to the Second Circuit Appeals Court and the Supreme Court, he writes:

“[The FISC court’s] ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes. This case shows how FISC decisions may affect every American — and perhaps their interest should have a voice in FISC.”

ACLU v Clapper, Pauley Decision

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