Judge rules phone surveillance lawful

A federal judge ruled that the NSA phone surveillance program that snarfs up billions of calls made by Americans does not violate the privacy rights of Americans.

This guys sounds really gung ho.


A federal judge ruled that a National Security Agency program that collects records of millions of Americans' phone calls is lawful, calling it a "counter-punch" to terrorism that does not violate Americans' privacy rights.

Friday's decision by U.S. District Judge William Pauley in Manhattan diverged from a ruling by another judge this month that questioned the program's constitutionality, raising the prospect that the Supreme Court will need to resolve the issue.

In a 54-page decision, Pauley dismissed an American Civil Liberties Union lawsuit contending that the NSA collection of "bulk telephony metadata" violated the bar against warrantless searches under the Fourth Amendment of the U.S. Constitution.

The judge also referred often to the September 11, 2001 attacks, in which nearly 3,000 people died, and said broad counter-terrorism programs such as the NSA's could help avoid a "horrific" repeat of those events.

"This blunt tool only works because it collects everything," Pauley wrote. "Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the government's counter-punch."

Sorry, your honor, but the issue isn't whether the program can prevent another 9/11. The issue is whether Americans have a reasonable expectation that their telephone calls won't be subject to government monitoring without a warrant.

Hit and Run's Jacob Sullum:.

U.S. District Judge William H. Pauley conceded that "such a program, if unchecked, imperils the civil liberties of every citizen," since "such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another." But he said he was bound by the Supreme Court's ruling in the 1979 case Smith v. Maryland, which held that the Fourth Amendment does not apply to telephone metadata indicating who calls whom, when, and for how long. "This Court consistently has held," the justices said in Smith, "that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." Under this precedent, Pauley said, no one has a Fourth Amendment right to stop the government from examining his telephone records, which are not really even his:

The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata....

The business records created by Verizon are not "Plaintiffs' call records." Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information....

The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.

Pauley seems uncomfortable with this conclusion. He emphasizes that the government uses the phone call records sparingly, uses them only to investigate terrorism, needs a comprehensive database for that purpose, follows "rigorous minimization procedures," and unnecessarily compromises innocent people's privacy only by accident. Under the "third party doctrine" enunciated in Smith, none of those debatable points matters, because the government's perusal of information you voluntarily share with someone else cannot possibly implicate your right to be free from unreasonable searches and seizures.

For the program to be declared unconstitutional, the Supreme Court is apparently going to have to reverse the 1979 Smith ruling. Considering how far the technology has come in 35 years, it would be logical to think that the ruling has outlived its usefulness.

But SCOTUS is reluctant to reverse even outdated law and I suspect some conservatives on the court will make that argument. It is also possible that the Supreme Court would seek to limit the scope of any ruling, waiting to see what Congress does about the NSA surveillance programs.

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