Friday, December 27, 2013

Judge William Pauley, District of New York : “The right to be free from searches is fundamental but not absolute,” he said. “Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.”

NSA mass collection of phone data is legal, federal judge rules

• Dragnet program deemed 'controversial but lawful'
• Lawsuit brought by ACLU dismissed
• NSA phone data collection deemed legal: full ruling

Dan Roberts in Washington
The Guardian, Friday 27 December 2013 11.52 EST

Cell phone data records — Judge said the phone data-collection system could have helped investigators connect the dots before the 9/11 attacks. Photograph: Lucas Jackson /Reuters

A legal battle over the scope of US government surveillance took a turn in favour of the National Security Agency on Friday with a court opinion declaring that bulk collection of telephone data does not violate the constitution.
The judgement, in a case brought before a district court in New York by the American Civil Liberties Union, directly contradicts the result of a similar challenge in a Washington court last week which ruled the NSA's bulk collection program was likely to prove unconstitutional and was "almost Orwellian" in scale.
Friday's ruling makes it more likely that the issue will be settled by the US supreme court, although it may be overtaken by the decision of Barack Obama on whether to accept the recommendations of a White House review panel to ban the NSA from directly collecting such data.
But the ruling from Judge William Pauley, a Clinton appointee to the Southern District of New York, will provide important ammunition for those within the intelligence community urging Obama to maintain the programme.
Judge Pauley said privacy protections enshrined in the fourth amendment of the US constitution needed to be balanced against a government need to maintain a database of records to prevent future terrorist attacks. “The right to be free from searches is fundamental but not absolute,” he said. “Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.”
Pauley argued that al-Qaida's “bold jujitsu” strategy to marry seventh century ideology with 21st century technology made it imperative that government authorities be allowed to push privacy boundaries.
“As the September 11 attacks demonstrate, the cost of missing such a threat can be horrific,” he wrote in the ruling. “Technology allowed al-Qaida to operate decentralised and plot international terrorist attacks remotely. The bulk telephony metadata collection programme represents the government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaida's terror network.”

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The New American

N.Y. Judge: NSA Spying “Imperils Civil Liberties of Every Citizen” but “Legal”

Written by Thomas R. Eddlem

Southern District of New York Judge William Pauley III declared in a December 27 decision that the NSA surveillance program — which draws in every American's telephone records without a warrant or probable cause — was “legal” even though it “imperils the civil liberties of every citizen.” The decision contrasts sharply with a decision two weeks ago by Washington, D.C. District Court Judge Richard Leon that termed the warrantless surveillance program unconstitutional and “almost Orwellian.”
Almost Orwellian was no problem for Pauley, who found that the Constitution should not get in the way of programs the government claims have worked: “The question for this Court is whether the Government's bulk telephony metadata program is lawful. This Court finds it is.”
Pauley dismissed the lawsuit by the ACLU despite acknowledging that “This blunt tool works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen.”

Metadata is the record created by a telephone call, and includes the number calling and the number called, as well as the time and duration of the call. The NSA also has other programs to collect Internet traffic and other data on Americans, but these other programs were not the subject of the lawsuit dismissed by Pauley.
Pauley claimed, however, that “Bulk telephony metadata collection is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the Intelligence Community, the FISC [Foreign Intelligence Surveillance Court], and Congress.”
Pauley's claim is not backed up by the facts, nor even by the text of his own 54-page decision. The public record is devoid of any serious restrictions on NSA created by the intelligence community or the Justice Department. And the FISC has turned out to be an NSA lapdog, not a watchdog. The Wall Street Journal reported back on June 9 that “From 1979 through 2012, the court overseeing the Foreign Intelligence Surveillance Act has rejected only 11 of the more than 33,900 surveillance applications by the government, according to annual Justice Department reports to Congress.”
Indeed, Pauley's decision — despite touting “extensive oversight” from FISA courts — acknowledged “there is no way for the Government to know which particle of telephony metadata will lead to useful counterterrorism information. When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation.”
As for Congress' surveillance of the NSA, most members didn't even know about the program until Edward Snowden revealed it to the public. Rep. Justin Amash (R-Mich.) noted that NSA briefings of Congress amounted to “a totally ridiculous game of twenty questions.”
The court decision read more like an op-ed by NSA chief Keith Alexander than a neutral court ruling, as Pauley derided “judicial-Monday-morning-quarterbacking" by the Leon court. Throughout the wordy 54-page decision, Pauley never articulated any objective restriction on a search that would be a violation of the Fourth Amendment. Not, at least, an argument on the Fourth Amendment that would be even a "substantial" burden on the government. Pauley noted that “To obtain a section 215 order [under the Patriot Act], the Government must show (1) ‘reasonable grounds to believe the tangible things south are relevant to an authorized investigation.’” But the “reasonable” standard is one defined by the U.S. Constitution's Fourth Amendment. Pauley argued that “Under section 215, the Government's burden is not substantial.” But the Fourth Amendment explicitly defines a “reasonable” search as one with a warrant supported by an oath, probable cause and particularity in describing what will be found and where it will be found.
Pauley claimed in his decision that “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.” Of course, all searches are subject to the Fourth Amendment; the amendment makes no exceptions for non-Fourth Amendment searches. The text of the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.