NY Federal Judge: NSA Phone Surveillance Is Legal

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A federal judge in New York rules that the NSA’s phone surveillance program is legal. Target data breach also included customer debit card PIN information. Delta website glitch offers domestic fares for bargain prices. Paul Vigna reports.

Judge Backs the NSA’s Surveillance (Wall Street Journal, Dec 28, 2013):

Ruling on U.S. Phone Data Contradicts Recent Decision, Boosting Likelihood of Supreme Court Review

The National Security Agency’s collection of data about most calls made in the U.S. is legal, a federal judge ruled, dismissing a significant court challenge and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge William H. Pauley III in Manhattan sided with the government in his decision, calling the collection program a vital tool that represents the government’s “counter-punch” against al Qaeda’s diffuse terror network.

The ruling comes less than two weeks after a federal judge in the District of Columbia took on the same issue and concluded in strong language that the program “almost certainly” violates the Constitution.

The decision in New York is the latest development in the controversy over a spying program that, despite its vast scale, was so cloaked in secrecy that years of court challenges by civil-liberties groups had failed to gain traction, mostly because the groups couldn’t prove their records had been seized. That changed with a series of leaks from former NSA contractor Edward Snowden that offered new details about the scope of such programs.

The New York case was brought in June by the American Civil Liberties Union, which claimed that the NSA was violating the group’s constitutional rights by collecting so-called metadata from the ACLU’s phone calls. In the lawsuit, the group said the NSA program was “akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where.”

The ACLU said it was “extremely disappointed” with the decision by Judge Pauley, an appointee of President Bill Clinton, and plans to appeal the ruling to the Second U.S. Circuit Court of Appeals in Manhattan.

The government is expected to appeal last’ week’s decision against it to the U.S. Court of Appeals for the District of Columbia Circuit. At least three other lawsuits challenging bulk data collection are pending in other federal courts. The three cases are all in courts covered by the Ninth Circuit.

If any appeals court declares the program unconstitutional, “it is highly likely that the Supreme Court will review the case,” said law professor David Cole, a constitutional law and national security scholar at Georgetown University.

The NSA amasses records of nearly all calls made in the U.S., then queries the database to map out contacts among numbers suspected to be connected to terrorism.

The phone program was created after the Sept. 11, 2001, terror attacks, and has been modified in years since. A provision of the Patriot Act authorizes collection of business records if the government reasonably believes they are “relevant to an authorized investigation.”

President Barack Obama has signaled that changes to surveillance programs are likely next year. At a news conference last week, he said it was “possible” the contested data could be stored by private phone companies, instead of by the government. That approach was among the recommendations issued last week by a presidentially appointed panel assigned to evaluate the NSA. The panel called for more oversight of the agency and said there was “no sufficient justification for allowing the government itself to collect and store” bulk phone records.

The ACLU’s lawsuit was among the first big legal challenges against the NSA data-collection program after details of the practice were disclosed in June. The ACLU sought a court order declaring that the mass call-logging violated federal law governing foreign-intelligence surveillance, as well as constitutional free-speech and search-and-seizure protections.

Judge Pauley disagreed.

“The right to be free from searches and seizures is fundamental, but not absolute,” he wrote. “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.”

Judge Pauley cited a 1979 Supreme Court decision, Smith v. Maryland, that held individuals have no “legitimate expectation of privacy” concerning telephone numbers they dial. That is because they hand that information over to a third party—a telecommunications provider—in order to connect the call, and telephone customers know those phone companies have the ability to make a record of the numbers they call, the court found.

A spokeswoman for the NSA deferred comment on Friday’s decision to the Justice Department, which said that it was “pleased” with the outcome.

In the D.C. court ruling on phone surveillance earlier this month, Judge Richard Leon ruled in favor of Larry Klayman, a conservative activist and lawyer who also sued the government over the issue in June. Judge Leon, an appointee of President George W. Bush, said phone technology and the ways in which phone usage is tracked have changed so much that the Smith v. Maryland ruling is of little use for evaluating the NSA program.

“The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979,” he wrote.

Judge Pauley rejected that argument in his Friday decision, noting that while people may use their telephones in different ways now than they did 34 years ago, “their relationship with their telecommunications providers has not changed.… The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata.”

The “government’s subsequent querying of the telephony metadata does not implicate the Fourth Amendment—any more than a law enforcement officer’s query of the FBI’s fingerprint or DNA databases to identify someone,” Judge Pauley wrote.

During arguments last month, Judge Pauley appeared receptive to the idea that Americans enjoy some level of privacy in their phone records. But in his ruling, the judge said he found no evidence that the government used any of the bulk metadata for any purpose other than investigating and disrupting terrorist attacks.

“No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice,” he wrote. “As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific.”

Law professor Robert Turner, a national-security expert at the University of Virginia, said it was likely that the Supreme Court would refuse to hear the cases if no federal appeals court disputes the constitutionality of the NSA program. “When all of the circuits are in accord, the Supreme Court usually does not bother to take a case,” Mr. Turner said.

Rep. Peter King, the Republican chairman of the House’s Homeland Security Subcommittee on Counterintelligence and Terrorism, called the decision “a victory for the patriotic men and women of the NSA.”

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