Eleven days ago, a federal judge in D.C. said the program violates the Fourth Amendment. Today, another federal judge in New York said it doesn’t. If each of those rulings is upheld on appeal, a Supreme Court hearing to settle the circuit split is a fait accompli. Can’t wait to see how the politics of that shakes out during the 2015 primaries. Does Hillary attack the program to pander to liberals or defend it to signal that she’ll be tough on terror? Does Ted Cruz use it as a wedge against Rand Paul by cautiously embracing it or does he lower the boom to try to impress more libertarian-flavored tea partiers?
Fun fact: Richard Leon, the D.C. judge who declared the program unconstitutional, was appointed by George W. Bush (and nominated the day before 9/11). William Pauley, the New York judge who upheld the program, was appointed by Clinton.
In a 54-page decision, Pauley said the program “vacuums up information about virtually every telephone call to, from, or within the United States.”
But he said the program’s constitutionality “is ultimately a question of reasonableness,” and that there was no evidence that the government had used “bulk telephony metadata” for any reason other than to investigate and disrupt terrorist attacks.
“Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely,” Pauley wrote. “The bulk telephony metadata collection program represents the government’s counter-punch.”
Here’s the opinion. If you’re only interested in the Fourth Amendment analysis, skip to page 38. One point of agreement between Leon and Pauley is that the respective plaintiffs have standing to bring their cases. That’s been hotly contested in NSA challenges since, per the statute, challenges to metadata collection are supposed to be heard exclusively by the FISA Court. Leon got around that by ruling that any federal court can hear a constitutional challenge to the program; it’s only the statutory challenges that are limited to the FISA Court. Pauley gets around it by noting that the feds don’t dispute that the NSA is collecting the ACLU’s phone records, which means the injury to the group is sufficiently specific to let them come to court. The fact that the DOJ didn’t put up a fight on standing makes me think that the White House is, perhaps, ready for SCOTUS to take on this issue. If they rule in favor of the program, great. That’ll quiet some (but not all) of the public skepticism. If they rule against the program, that’s okay too — then O can end it or mend it, which will take some political heat off, and if there’s another terror attack before his term ends he can blame the Supreme Court for taking away one of his weapons.
As for the substance of the ruling, you can tell which way this one’s going from the first few paragraphs, in which Pauley theorizes that having the metadata program in place on 9/11 would have tipped the feds to the fact that the hijackers were already in place inside the U.S. Here’s the key paragraph from the Fourth Amendment section:
They’re not your records, they’re the telephone company’s records, and you can’t have a “reasonable expectation of privacy” in something that not only don’t belong to you but was created using information that you happily volunteered to a third party. That’s in line with the Supreme Court’s decision in Smith v. Maryland in the 1970s, the same decision that Judge Leon ruled shouldn’t apply to NSA cases now given the vastly broader scope of data-harvesting and new technological capabilities that the feds have developed to analyze it. In fact, says Pauley, there are all sorts of things the government’s entitled to find out about you because you have no constitutional privacy interest in them. A key footnote, flagged by Gabe Malor:
But … what about the sheer scope of the program? The Smith case involved cops obtaining the phone records for a particular criminal suspect; the NSA program is about collecting phone records for everyone, nearly all of whom are innocent of terrorism, and then sifting through it for evidence of malfeasance. It’s the ultimate fishing expedition, not a targeted search. To which Pauley says: So what? The Supreme Court’s never said that the feds need to conduct the narrowest means of searching. On the contrary, the program wouldn’t work if it wasn’t comprehensive:
You need to distinguish between collecting data, says Pauley, and accessing and exploiting that data. The NSA is required (in theory) to submit to FISA Court approval and oversight on the latter, which is where the potential abuses of power lie. Merely gathering the data, though, falls under Smith, which remains good law until the Supreme Court says otherwise. And, adds Pauley, the program does work to stop terrorism; he relays three examples offered by the feds on page 48. Judge Leon claimed in his own opinion that the DOJ had no offered no such evidence. That’s a striking difference between them — from his opening invocation of 9/11, Pauley seems fully convinced that the program is worthwhile. Leon seems to think it’s worthless, or close enough to worthless that the potential for abusive privacy intrusions crushes any redeeming value it might have.
Speaking of which, one more excerpt from Pauley that sharply contradicts Leon:
Leon mentioned Snowden’s revelations in his own opinion as one of the factors in granting standing to the plaintiffs. It used to be, he argued, that no one could get a case like this in front of a judge because the NSA programs were so secret that no one knew exactly what sort of violation to allege. Thanks to Snowden, that’s no longer true. Pauley’s take is the opposite: How can we allow someone who’s facing criminal charges for spilling state secrets to dictate standing in federal court?
It’s fun to parse these legal niceties but the core disagreement here is simple. Leon thinks the government’s surveillance power has grown so enormous in the Internet age that federal courts need to revisit their jurisprudence on data collection and privacy. The Smith decision might have been fine for the 1970s, when the feds could only do so much with the records they obtained. It’s not fine now. As state power expands, it’s up to the courts to protect individual privacy by being more exacting in its application of the Bill of Rights. Pauley thinks it’s not his place as a district court judge to overturn a decision of the Supreme Court, and in any case, the privacy arguments are overblown. American judges have never held that you have a right to shield all of your personal data from the state, and besides, there are procedures in place to limit what the NSA can do with your data. if you’ve got a beef with state surveillance, take it up with the responsible parties, the executive and legislative branches. It’s on you to build political pressure on them to the point where they feel it’s more risky not to reform the program than it is to reform it. Ultimately, this is the old debate between viewing terrorism as a matter of national security or of law enforcement. Should there be special rules in the post-9/11 age to make it easier for the feds to stop terrorism before it happens? If so, why limit that power to acts of terrorism instead of extending it to other terrible crimes? Like I say, 2015 will be interesting.