Just over ten days after a Federal Judge in Washington, D.C. had ruled that the National Security Agency’s data mining programs were unconstitutional, a separate Federal Judge, this time in New York City, has ruled that the program is in fact permissible and dismissed a case challenging it largely out of hand:
WASHINGTON — 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 “almost Orwellian” and probably unconstitutional.
The decision on Friday “is the exact opposite of Judge Leon’s in every way, substantively and rhetorically,” said Orin S. Kerr, a law professor at George Washington University. “It’s matter and antimatter.”
The case in New York was brought by the American Civil Liberties Union, which 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relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, a lawyer with the group.
A spokesman for the Justice Department said, “We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”
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, “vacuums up information about virtually every telephone call to, from or within the United States.” That information is “metadata” — 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 — including the former F.B.I. director Robert S. Mueller III — 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 “could not capture al-Mihdhar’s telephone number,” the judge wrote, and “N.S.A. analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”
“Telephony 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,” 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. “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.
The presidential review group took a middle ground, though it seemed to lean toward Judge Leon’s position. It said the security agency “believes that on at least a few occasions” the program “has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world.” But it added that its own review suggested that the program “was not essential to preventing attacks,” and that less intrusive measures would work.
The group recommended that bulk storage of telephone records by the government be halted in favor of “a system in which such metadata is held instead either by private providers or by a private third party.” Access to the data, it said, should require a court order.
Leon and Pauley also disagreed strongly on the issue of the Constitutionality of the NSA’s programs and the applicability of the U.S. Supreme Court’s opinion in Smith v. Maryland:
“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 metadata program is lawful,” Judge Pauley wrote on Friday. “This court finds it is.”
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. “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” 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 government’s ability to construct a mosaic of information from countless records, he said, called for a new analysis of how to apply the Fourth Amendment’s prohibition of unreasonable government searches.
Judge Pauley disagreed. “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search,” he wrote.
He acknowledged that “five justices appeared to be grappling with how the Fourth Amendment applies to technological advances” 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 defendant’s property rights.
In one of the concurrences, Justice Sonia Sotomayor wrote that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”
Lyle Denniston analyzes the Judge Pauley’s decision:
Aside from fully embracing the government’s claims about how telephone bulk data sweeps are working against terrorist threats, Judge Pauley reached a number of other major legal conclusions:
** He ruled that the constitutionality of the vast new program is controlled by a 1979 Supreme Court ruling — Smith v. Maryland – that had declared that an individual customer of a telephone company has no right to privacy in the data that the telephone company gathers about its customers’ use of their service. In discussing that precedent (which Judge Leon had declined to follow), Judge Pauley said the threat to privacy was even greater when a single individual’s telephone records are examined by government than when tens and tens of millions’ data is gathered in
** He ruled that Congress had full authority to grant the government the power to conduct such a global by seeking secret orders from a secret federal intelligence court, and found that this entire regime had worked as Congress had intended. He thus ruled that the challengers could not show that the bulk data sweeps were illegal under federal law.
** He found that there was no violation of a constitutional right to privacy in the NSA program, and concluded that the telephone data being swept up by NSA did not belong to telephone users, but to the telephone companies.
** He ruled that, when NSA obtains such data from the telephone companies, and then probes into it to find links between callers and potential terrorists, this further use of the data was not even a search under the Fourth Amendment.
The only close parallels between what Judge Pauley decided and what Judge Leon had ruled was that both agreed that, with the disclosures by former NSA analyst Edward J. Snowden, customers who use telephones throughout the U.S. now have a right to bring challenges in court, because their telephone use almost certainly had been caught up in the NSA sweeps, and that those challenges could be based on the Constitution. Both, however, ruled that the challengers could not argue in court that the data gathering was illegal under federal law.
The fact that two District Court Judges disagree with each other should not be surprising. After all, the mere fact that there are approximately 677 such judges, who have been appointed by Presidents ranging from Ronald Reagan to Barack Obama and, in the case of a few Senior Judges, even Lyndon Johnson and Richard Nixon, sitting across the country makes it rather inevitable that you’re likely likely to see disagreements. The same is true of the approximately 714 Federal Circuit Court of Appeals Judges spread among 15 Courts of Appeal (11 Circuits, the D.C. Circuit, the Federal Circuit, and the Court of Military Appeals) and, of course, among the 9 Justices of the Supreme Court. This is one of the reasons why our judicial system has several layers of trial and appeal, because individual judges can disagree and, sometimes be wrong on the law.
In this particular case, of course, the principal disagreement between Judge Pauley in New York and Judge Leon in Washington is their view of the applicability of the Supreme Court’s opinion in Smith v. Maryand in a modern era of smart phones, web-based email, and the cloud. As I noted in my post on Judge Leon’s ruling, he found that advances in technology had changed the boundaries of what constitutes a “reasonable expectation of privacy,” which is the standard the Court has used to determine whether something is covered by the Fourth Amendment’s requirement for a warrant based on probable cause. In Smith the Supreme Court had determined that information about numbers dialed by a phone, and the numbers of calls made to a particular phone, were not covered by the Fourth Amendment in part because the data in question was kept under the control of third-party providers rather than in the custody of the phones’ users or owners. Judge Leon ruled that this simplistic view of individual expectations of how data held by third parties should be treated no longer applied, and that it was time to reexamine the applicability of the third-party doctrine in the light of new technology. As noted, this is an opinion that has been hinted at in recent years by several Supreme Court Justices, something that Judges Leon and Pauley are no doubt well aware of.
Allahpundit describes the difference between Leon’s ruling and Pauley’s this way:
Leon thinks the government’s surveillance power has grown so enormous in the Internet age that federal courts need to revisit their jurisprudence on data collection and privacy. The Smith decision might have been fine for the 1970s, when the feds could only do so much with the records they obtained. It’s not fine now. As state power expands, it’s up to the courts to protect individual privacy by being more exacting in its application of the Bill of Rights. Pauley thinks it’s not his place as a district court judge to overturn a decision of the Supreme Court, and in any case, the privacy arguments are overblown. American judges have never held that you have a right to shield all of your personal data from the state, and besides, there are procedures in place to limit what the NSA can do with your data. if you’ve got a beef with state surveillance, take it up with the responsible parties, the executive and legislative branches. It’s on you to build political pressure on them to the point where they feel it’s more risky not to reform the program than it is to reform it. Ultimately, this is the old debate between viewing terrorism as a matter of national security or of law enforcement. Should there be special rules in the post-9/11 age to make it easier for the feds to stop terrorism before it happens? If so, why limit that power to acts of terrorism instead of extending it to other terrible crimes?
This is hardly the end of the road for this issue, of course. Judge Leon’s ruling will be appealed to the Court of Appeals for the D.C. Circuit, and Judge Pauley’s will be appealed to the Court of Appeals for the Second Circuit. Depending on how quickly both Courts move, it’s likely that both cases will be ripe for consideration by the Supreme Court sometime late in 2014 or early in 2015l In the meantime, we’ll likely hear from other U.S. District Courts of Appeal on this issue and that those cases will similarly be appealed. In the meantime, President Obama is apparently planning to take action of some kind in response to the report he received from the panel he set up to review the NSA’s programs in the wake of the revelations from Edward Snowden. Additionally, Congress is expected to act on the matter as well and the issue of government surveillance will likely to be an issue in the 2014 elections. At the very least, Americans will be talking about an issue that has gone ignored through the 12 years of the “War On Terror,” and that in itself is a good thing.
Here’s the opinion:
