Judge backs NSA on call data

Mass collection might have averted 9/11 attacks, ruling says

NEW YORK - The National Security Agency’s mass collection of telephone data does not violate the Constitution, a federal judge in New York ruled Friday, setting up a conflict within the federal courts and increasing the likelihood that the Supreme Court eventually will have to resolve the issue.

In an opinion that referred to the agency’s surveillance program as part of “the government’s counter-punch” after the Sept. 11, 2001, terrorist attacks, District Judge William Pauley justified the collection of “metadata” as a necessary response to terrorism. The 9/11 attacks might have been prevented had such a mass collection of telephone data been in place at the time, he wrote.

Pauley, of the U.S. District Court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the agency’s surveillance program brought by the American Civil Liberties Union, which had attempted to halt the program.

The judge said the National Security Agency intercepted seven calls made by one of the 9/11 hijackers in San Diego before the attacks, but mistakenly concluded that he was overseas because the agency lacked the kind of information it can now collect.

“The government learned from its mistake and adapted to confront a new enemy, a terror network capable of orchestrating attacks across the world,” he said.

“This blunt tool only works because it collects everything,” Pauley said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”

Still, Pauley said such a program, if unchecked, “imperils the civil liberties of every citizen,” and he noted the debate about the subject 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. This court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of government to decide,” he said.

The decision by Pauley, who was appointed to the federal bench by former President Bill Clinton, contrasts sharply in both conclusion and tone with a decision issued earlier this month by U.S. District Judge Richard Leon in Washington, D.C., who declared the agency’s program unconstitutional.

Leon’s ruling granted a preliminary injunction against the collecting of phone records of two men who had challenged the program. The judge said the program likely violates the Constitution’s ban on unreasonable searches. The judge has since stayed the effect of his ruling, pending a government appeal.

Both rulings are expected to be appealed, Leon’s to the D.C. Circuit and Pauley’s to the New York-based 2nd Circuit. Ultimately, whichever side loses in the appeals courts likely will ask the Supreme Court to review the case.

Leon, who was appointed by President George W. Bush, said he could not imagine a more “indiscriminate and arbitrary invasion” of the Fourth Amendment’s protection from unreasonable searches. He called the National Security Agency’s vast database of telephone call records an almost “Orwellian technology.”

Pauley said the agency’s collection did not violate any constitutional rights. Relying on a 1979 Supreme Court precedent that Leon had brushed aside as outdated, Pauley said the records the agency has collected - information such as phone numbers that are called and how long the calls last - have no protection under the Constitution’s guarantee against unreasonable searches.

In the 1979 decision, Smith v. Maryland, the court said that a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone.

But Leon said in his ruling that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined Smith. 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.

Pauley disagreed. “When a person voluntarily conveys information to a third party” such as a telephone company, “he forfeits his right to privacy in the information,” he wrote.

Nor does the huge scale of the agency’s activities change that analysis, he said.

Pauley said the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”

“The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment” violation, he said in the opinion.

And though Leon expressed deep skepticism about how much benefit the government gets from its database, Pauley accepted the government’s argument that it’s vital.

The decision comes as President Barack Obama considers whether to impose new restrictions on the agency’s activities. Last week, a presidential task force urged Obama to adopt new limits on the agency. Obama said he was taking the recommendations seriously and would announce a decision in January.

The latest ruling is certain to bolster the arguments of the agency’s allies. “We are pleased the court found the NSA’s bulk telephony metadata collection program to be lawful,” Justice Department spokesman Peter Carr said in a statement.

National Security Agency spokesman Vanee Vines declined to comment.

In arguments before Pauley last month, an ACLU lawyer said the government’s interpretation of its authority under the USAPATRIOT Act was so broad that it could justify the mass collection of financial, health and even library records of innocent Americans without their knowledge, including whether they had used a telephone sex hotline, contemplated suicide, been addicted to gambling or drugs or supported political causes.

A government lawyer had countered that counterterrorism investigators wouldn’t find most personal information useful.

Pauley said there were safeguards in place, including the fact the agency cannot query the phone database it collects without legal justification and is limited in how much it can learn. He also noted “the government repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles.”

The ACLU sued earlier this year after former National Security Agency contractor Edward Snowden leaked details of the secret program that critics say violates privacy rights. The program picks up millions of telephone and Internet records that are routed through American networks each day.

The ACLU issued a statement expressing disappointment and promising to appeal.

The decision “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 deputy legal director.

“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.” Information for this article was contributed by Timothy M. Phelps of the Tribune Washington Bureau; by Larry Neumeister, Mark Sherman and Kimberly Dozier of The Associated Press; and by Michael S. Schmidt and Adam Liptak of The New York Times.

Front Section, Pages 1 on 12/28/2013

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