NSA Call Data Sweep Ruled Legal as Court Conflict Brews

The National Security Agency’s bulk collection of phone call records is legal, a U.S. judge said, creating a conflict with another judge on a post-9/11 terrorism program that may have to be resolved by the Supreme Court.

Yesterday’s decision comes less than two weeks after a federal judge in Washington said the NSA program, which was disclosed by former agency contractor Edward Snowden, may violate the U.S. Constitution. The two judges came to opposite conclusions about a landmark 1979 ruling that dealt with telephone data in the pre-Internet age.

U.S. District Judge William H. Pauley III in Manhattan yesterday granted a motion by the government to dismiss a suit filed in June by several groups led by the American Civil Liberties Union seeking to block the program.

In the earlier case, U.S. District Judge Richard Leon issued an injunction barring collection of metadata from the Verizon Wireless accounts of the two plaintiffs in the suit. Leon suspended the injunction while the government pursues an expected appeal.

“While robust discussions are underway across the nation, in Congress, and at the White House, the question for this court is whether the government’s bulk telephony program is lawful,” Pauley wrote in his opinion. “This court finds it is.”

Bulk Program

The NSA receives phone records from U.S. telecommunications companies and stores them in a database that can be queried to determine who is in contact with suspected terrorist organizations. The bulk surveillance program was authorized by President George W. Bush after the Sept. 11, 2001, terrorist attacks, and has been defended as “critically important” to national security, according to records declassified this month by National Intelligence Director James Clapper.

The records collected under the NSA program consist of “metadata” including the numbers used to make and receive calls and their duration. They don’t include information about the content of the communications, or the names, addresses or financial information of parties, according to government filings in the Washington case.

At least three other cases in federal court are considering the legality of the NSA metadata collection program.

“We are pleased the court found the NSA’s bulk telephony metadata collection program to be lawful,” Peter Carr, a spokesman for the U.S. Justice Department, said in an e-mail about Pauley’s ruling.

The ACLU said it plans to appeal.

‘Extremely Disappointed’

“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,” Jameel Jaffer, ACLU deputy legal director, said in a statement. “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.”

At the center of both the New York and Washington court rulings is a 1979 case, Smith v. Maryland, in which the U.S. Supreme Court ruled that police weren’t required to obtain a warrant to install a device that recorded the numbers dialed from the home of a robbery suspect, Michael Lee Smith. The court ruled there is no legitimate expectation of privacy in phone numbers that are dialed and communicated to a telephone carrier.

Tracking Device

Pauley, who applied the Smith case in ruling against the ACLU, said that the NSA’s collection of “breathtaking amounts of information” not protected by the Fourth Amendment to the U.S. Constitution, which bars unreasonable searches and seizures, doesn’t turn it into a search falling under the amendment.

Pauley rejected the ACLU’s argument that a Supreme Court ruling from 2012, throwing out evidence gathered from a GPS tracking device placed on the defendant’s car without a warrant, supported its attempts to block the NSA program.

“The Supreme Court did not overrule Smith,” in the 2012 ruling, Pauley said. “And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”

New Limits

While he found the NSA program doesn’t violate the law, Pauley left to Congress and the White House to determine whether it’s wise.

“The question of whether that program should be conducted is for the other two coordinate branches of government to decide,” he said.

In a report released Dec. 18, a White House advisory panel recommended new limits on the government’s wholesale collection and storage of Internet and telephone communications.

The government should be barred from collecting billions of phone records and bulk data containing personal information about people, the panel said in its report. Instead, those records should be kept by telecommunications companies or a private third party, the panel said. The government could access the material with a court order.

The panel, established in August by President Barack Obama, includes Richard Clarke, a former U.S. cybersecurity adviser; Michael Morell, a former deputy CIA director; Geoffrey Stone, a University of Chicago law professor; Cass Sunstein, a Harvard Law School professor who formerly worked in the administration; and Peter Swire, who served on Obama’s National Economic Council.

In his ruling this month, Leon in Washington said the 1979 Smith decision doesn’t resolve the legal questions raised by the NSA program, which involves millions of calls and data being stored and analyzed for as long as five years.

“I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones,” Leon wrote.

The case is American Civil Liberties Union v. Clapper, 13-cv-03994, U.S. District Court, Southern District of New York (Manhattan).

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