A Federal Judge in New York handed the Obama administration a legal victory for its controversial phone data collection program last week, concluding that the program was a legal and vital “counter-punch” against increasingly sophisticated terrorism networks.
With this latest decision, the battle lines are quietly being drawn in what may ultimately be another blockbuster legal fight before the Supreme Court. In a rare move, Judge William H Pauley III even went out of his way to directly rebut portions of the opinion released by another Federal judge just one week prior that concluded that the National Security Agency program likely violates the Fourth Amendment.
The contrasting opinions perfectly illustrate the views of the rival legal camps building their arguments for a possible high-court showdown.
Judge Pauley opened his opinion with an assertion that the Sept. 11 terrorist attacks might have been prevented had the NSA been collecting phone metadata back in 2001. “Metadata would have furnished . . . missing information and might have permitted the NSA to notify the Federal Bureau of Investigation (‘FBI’) of the fact that [a 9/11 hijacker] was calling the Yemeni safe house from inside the United States,” the judge claimed.
Perhaps the NSA program is extremely useful for foiling terror plots, but the American public and the Federal judiciary can only guess. Earlier this month, D.C. Judge Richard Leon sharply rebuked the government’s terror-fighting arguments, noting that the government did not “cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack.” That’s a fairly convincing counter-punch (to borrow language from Judge Pauley’s forgiving decision in favor of the government).
Concerning the crucial question of whether the NSA’s massive metadata collection program violates the Fourth Amendment, Judge Pauley directly addressed Judge Leon’s decision. He wrote, “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 telephone metadata.” He based that conclusion on the 1979 case Smith v. Maryland, which other judges have pointed to when upholding the NSA’s program.
In concluding that the NSA program — which he described as an “almost-Orwellian technology” — likely violated the Fourth Amendment, Judge Leon noted that times have changed dramatically since the late ’70s. “In fact, some undoubtedly will be reading this opinion on their cell phones . . . Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letters and attached postage stamps,” joked Judge Leon.
The American Civil Liberties Union, the plaintiff that lost in New York last week, mirrored the more serious argument made by Judge Leon on this point: telephone metadata in 2013 is much more intrusive than metadata in 1979.
Quoting Supreme Court Justice Sonia Sotomayor (always a good strategy when trying to win a concurring opinion from a Justice in the future), Judge Leon argued that the shift towards a cell phone-centric culture means metadata from each person’s phone “reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” The result? Americans may rightfully have a greater expectation of privacy in their telephone metadata today.
Noting the conflicting legal rulings this month, the ACLU vowed to appeal the decision to the Second Circuit Court of Appeals. The government is also expected to appeal Judge Leon’s decision to the U.S. Court of Appeals for the District of Columbia Circuit.
Three other challenges of the surveillance program are currently pending in Federal court, and no doubt those judges are carefully reading these other opinions as they craft their own legal arguments in the growing fight over NSA spying.
