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December 27, 2013

And Now a Federal Judge Pronounces the NSA's Telephony Dragnet Constitutional

Last week a federal district judge agreed with Larry Klayman that the NSA's suspicion-free bulk data collection on every US citizen was almost certainly unconstitutional. He enjoined the NSA from collecting the data under this program, but then immediately stayed his own ruling, so as to allow the case to proceed to appeal before enforcement began taking place.

Now a federal judge for the southern district of New York* rules that the same program is "lawful."

The judge to rule in the government's favor characterizes the government's policy of Let's Clean All The Data as merely a "counter-punch" against terrorism.

Pauley said that if the U.S. government had the phone data collection program before the Sept. 11, 2001, terrorist attacks, it could have helped provide critical clues. He said that so-called telephone metadata might have permitted the NSA to notify the FBI that one of the terrorists was calling a Yemeni safe house from inside the United States.

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

Politico quotes more from the opinion. Having found the program lawful, the judge states that is up to the political branches to decide if the program should continue.

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

He 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 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.

Part of the judge's findings is that this program is effective in stopping terrorism. That is far from clear. The government makes many vague assertions about the efficacy of the program, but offers very few verifiable examples of terrorist actions thwarted.

And one former NSA employee says the flood of data is nearly useless -- with so many terabytes of data collected from random citizens, the Agency is drowning in data but has no clear idea how to swim through it all.

William Binney, creator of some of the computer code used by the National Security Agency to snoop on Internet traffic around the world, delivered an unusual message here in September to an audience worried that the spy agency knows too much.

It knows so much, he said, that it can't understand what it has.

"What they are doing is making themselves dysfunctional by taking all this data," Mr. Binney said at a privacy conference here.

The agency is drowning in useless data, which harms its ability to conduct legitimate surveillance, claims Mr. Binney, who rose to the civilian equivalent of a general during more than 30 years at the NSA before retiring in 2001. Analysts are swamped with so much information that they can't do their jobs effectively, and the enormous stockpile is an irresistible temptation for misuse.

Drew has previously criticized the argument which the judge now endorses. Although section 215 of the Patriot Act, by its own terms, only permits the government to snoop in three categories of cases, it is argued that these classes are merely "exemplars," just some for-example fer-instances of whom the government may spy on. The specification of these three categories of permitted spying is not, the government argues, a limitation on its power, but merely a jumping off point for whichever powers it thinks would be useful.

As Drew says:

The criteria outlined in (b)(2) of Section 215 are the only cases in which the Congress has authorized the production of records (within the Patriot Act/FISA Court). In order to collect the records of someone the government has to be able to show that they fit into one of those three categories. This isn’t optional. It isn’t an invitation to find ever wider definitions that would eventually ensnare EVERY America who uses a cellphone. It’s the law. Full stop. End of story

To say they are nothing more than the noodlings of the Congress or a jumping off point for an active and imaginative executive branch implies a level of possible lawlessness that is breathtaking. Congress gave a specific grant of authority to the executive here; that they didn’t rule all other possible grants out doesn’t mean the executive can simply claim those other situations are OK too. If that were the case, why bother picking 3? Or any? Congress isn’t a consulting firm with expertise in investigative lines the Department of Justice might not have thought of. It’s a lawmaking body that either says you can or can’t do certain things.

The full decision is here, which is 53 pages long, but many pages of that are about non-essential procedural questions (such as standing) that a reader may skip to get to the heart of the ruling. Drew says it's doable (but I haven't read it yet myself).

Gabe sends this helpful comparison between the holdings of Judges Leon and Pauley. For example:

On Smith v. Maryland, a 1979 U.S. Supreme Court ruling that allowed police to collect phone records from a suspect in a robbery case without a warrant:

Judge Leon: “In Smith, the Court considered a one-time, targeted request for data regarding an individual suspect in a criminal investigation, which in no way resembles the daily, all-encompassing, indiscriminate dump of phone metadata that the NSA now receives as part of its Bulk Telephony Metadata Program. It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government.”

Judge Pauley: “Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. Inferior courts are bound by that precedent. … Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. 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 telephony metadata.”


* Corrected. I stated that Pauley was a DC Circuit Court judge. He isn't. Thanks to Drew and Gabe for correcting me.



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