U.S.

Federal judge upholds NSA phone data collection as constitutional

Contrasts with another judge's decision early this month, likely setting up lengthy legal battle

Judge William Pauley's decision will be appealed by the ACLU.
Ulrich Baumgarten/Getty Images

A federal judge on Friday found that the National Security Agency's bulk collection of millions of Americans' telephone records is legal and a valuable part of the nation's arsenal to counter the threat of terrorism.

The decision counters another Federal Judge’s ruling just weeks ago that said the “almost Orwellian” program was likely unconstitutional. The disparate outcomes at the Federal level mean that the final word on the NSA’s programs may have to come from the Supreme Court.

U.S. District Judge William Pauley said in a written opinion on Friday that the program "represents the government's counter-punch" to eliminate Al-Qaeda's wide-ranging network by connecting fragmented and fleeting communications.

In the ruling, the judge noted the Sept. 11 attacks and said the phone data-collection system could have helped investigators connect the dots before the attacks occurred.

"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program -- a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data," he said.

That language is notable, said New York University law professor Barry Friedman, because it suggests Pauley buys into the idea that attacks have been prevented by the analysis of metadata. The NSA hasn’t acknowledged a specific instance where its program has helped stop an attack.

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Pauley's decision contrasts with a ruling earlier this month by U.S. District Court Judge Richard Leon, who granted a preliminary injunction against the collecting of phone records of two men who had challenged the program. Leon said the program likely violates the U.S. Constitution's ban on unreasonable search, but granted a stay on the suit to give the U.S. government time to challenge it.

The lawsuit Pauley dismissed on Friday was filed by the American Civil Liberties Union.

“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’s deputy legal director 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. We intend to appeal and look forward to making our case in the Second Circuit.”

In arguments before Pauley last month, an ACLU lawyer had argued that the government's interpretation of its authority under the Patriot Act was so broad that it could justify the mass collection of financial, health and even library records of innocent Americans without their knowledge. A government lawyer had countered that counterterrorism investigators wouldn't find most personal information useful.

"We are pleased with the decision," Justice Department spokesman Peter Carr said on Friday.

NYU professor Barry Friedman said the decision could have wide-ranging implications beyond the current NSA scandal, because it reaffirms a 1979 Supreme Court decision which found that information given over to a third party — for example, phone records — wasn’t protected under the Fourth Amendment.

Because Pauley's decision will be challenged, and perhaps make its way to the Supreme Court, Friedman says the country may get a chance to revisit the idea that giving information to a third party invalidates its privacy protections.

“It sets the stage for a showdown for the most important Fourth Amendment issue of our time,” he said. “I can think of few questions that are as huge as this one is.”

Al Jazeera and wire services. Peter Moskowitz contributed to this report.

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