Federal judge: The NSA’s phone metadata program is constitutional

posted at 2:31 pm on December 27, 2013 by Allahpundit

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:

ownership

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:

privacy

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:

broad

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:

snow

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.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

The last line is the best one.

Schadenfreude on December 27, 2013 at 2:33 PM

obama enabled Putin to be the moralizer of the world. Putin now claims to more “against socialism” than is obama.

The irony escapes the morons from both sides of the political spectrum, in DC and here.

Schadenfreude on December 27, 2013 at 2:35 PM

to be more

Schadenfreude on December 27, 2013 at 2:35 PM

Not really off topic – watch and weep, more than you smirk.

Schadenfreude on December 27, 2013 at 2:37 PM

Ramirez’ gift to the GOP.

Schadenfreude on December 27, 2013 at 2:38 PM

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.

Umm…

Otherwise, my head is spinning from the analysis of this latest decision, I just don’t have the mental focus today to read it. Though that doesn’t mean I don’t admire AP for his conscientiousness in organizing and writing the above post.

Perhaps the issue really does boil down to socio-political perspectives of the judges involved, arranging a pie-crust in just so a fashion as they each have to support their top-level political views. The law, as they “see” it. The pie as they “bake” it. It’s a construct done, their respective opinions, that came AFTER their perpsectives arrived at their individual, respective subconscious perspectives.

My guess, anyway, from an utterly non-legal perspective. Never underestimate the power of The Perspective.

Lourdes on December 27, 2013 at 2:41 PM

If so, why limit that power to acts of terrorism instead of extending it to other terrible crimes?

Like say Tea Party Affiliation.

Buttercup on December 27, 2013 at 2:41 PM

Name one terrorist who was caught by the NSA.

The NSA testified last week that they didn’t find one single one.

Schadenfreude on December 27, 2013 at 2:42 PM

The IRS and the NSA, with the Chamber of Commerce will fight their true “enemies”:

Report: Chamber to hit Tea Party with $50M

By Cameron Joseph

The Chamber of Commerce is planning to spend at least $50 million on a campaign to boost establishment Republicans in primaries against Tea Party challengers, according to The Wall Street Journal.

The group’s broader aim is to help the GOP win Senate control and block Tea Party Republican candidates who might lose otherwise winnable seats to Democrats.

“Our No. 1 focus is to make sure, when it comes to the Senate, that we have no loser candidates,” Chamber political strategist Scott Reed tells the Journal. “That will be our mantra: No fools on our ticket.”

The organization has been gearing up for a more confrontational approach toward Tea Party Republicans since the government shutdown. It has already been involved in some special elections for House primaries, and is supporting Rep. Mike Simpson (R-Idaho) against his Tea Party primary foe.

Hard-right, mistake-prone Senate candidates are widely perceived to have cost the GOP five Senate seats in recent years, in states including Missouri, Indiana and Delaware.

Potential states that could be ripe for Chamber involvement include Georgia, Iowa and North Carolina, where Tea Party candidates could complicate their party’s chances of winning Senate seats.

The Chamber’s push is part of a larger effort by establishment and business Republicans to seize back control of their party, according to the report.

Schadenfreude on December 27, 2013 at 2:44 PM

If so, why limit that power to acts of terrorism instead of extending it to other terrible crimes?

Like say Tea Party Affiliation.

Buttercup on December 27, 2013 at 2:41 PM

Truly, this is the horrible destination that every thoughtful person can perceive that this train-line of governmental intrusion leads to.

People in the West (that’s us), many among us, are not familiar with, never learned about how the Communist-USSR intrusional government selected out individuals based upon their “ideas” and “opinions” and sent them off to wretched imprisonments where they underwent forced “sanity” processes. They were deemed (by that crooked govt.) to be “insane” and forced into a variety of institutional circumstances as the govt. declared itself and it’s workers aligned to be the “healers” of their unaccaptable views. Views such as Christianity, literature — particularly those who wrote it from an individual perspective not advancing Communism.

Same thing done by Communist China to it’s citizens.

Though I acknowledge that there are a lot of mentally and emotionally disturbed people today (likely, always have been), I am highly suspect of the motives behind WHY Obamacare has made it a priority to include “mental health” care, so it’s being called, in it’s legislation. And that out of the minds of Pelosi, Biden, Obama, to name a disturbed few.

Lourdes on December 27, 2013 at 2:48 PM

Not that I agree with their methods but the NSA doesn’t catch anyone, they gather intel and I seriously doubt if they would admit to being involved with the capture of any bad guys.

major dad on December 27, 2013 at 2:50 PM

Is there anyone, anywhere that believes if the metadata is there, it will only be used to fight terrorist? Who is a terrorist? Am I a terrorist because I believe that everyone of those SOBs in DC should be thrown out of office?

I’m sure there’s more than one person in DC that sees the middle-class white man as the terrorist.

Phatbastage on December 27, 2013 at 2:52 PM

So judges are making shiite up now.

Time to revamp the Federal Judiciary system…

katy on December 27, 2013 at 2:55 PM

Must not question The Reich!

viking01 on December 27, 2013 at 2:57 PM

Does Hillary attack the program to pander to liberals or defend it to signal that she’ll be tough on terror?

The NSA metadata collection has nothing to do with terror. They scoop up all the info possible on innocent American citizens but they missed the Tsarnaevs (not Americans – until some traitorous douchebag let one of them be illegitimately naturalized), who were broadcasting their anti-Americanism and love for terror loud enough that no secret metadata collection of them was even necessary. Still, the NSA missed them by a mile.

This is all a bad joke. But … that’s life in the American Socialist Superstate.

As to Shrillary, after that moronic “Peregruzka” debacle she should be laughed off the public stage and never heard from, again. And, if that weren’t enough, Benghazi should have seen her donning an orange jumpsuit behind bars.

But, again, that’s life in the A.S.S. for you.

ThePrimordialOrderedPair on December 27, 2013 at 2:57 PM

Is there anyone, anywhere that believes if the metadata is there, it will only be used to fight terrorist? Who is a terrorist? Am I a terrorist because I believe that everyone of those SOBs in DC should be thrown out of office?

I’m sure there’s more than one person in DC that sees the middle-class white man as the terrorist.

Phatbastage on December 27, 2013 at 2:52 PM

My guess is that we should all assume the worst: our “opinions” are being harvested (“checked”) as are those with whom we connect or who connect with us (who we call, email, who does so to us) and on and on, “checking” the whole tree of connections, AND for content.

Because: I’m sure there’s more than one person in DC that sees the middle-class white man as the terrorist.

Lourdes on December 27, 2013 at 2:57 PM

“Does Hillary attack the program to pander to liberals or defend it to signal that she’ll be tough on terror?”

Jeezus. If Hil was more interested in a competent offense/defense against “terror”, perhaps she should take some interest in data that’s been hand-delivered by the terrorists in question along with numerous notifications from potential targets occupying the space front and center. The same goes for those dismissing personal notes from Russia, Libya, and the multiple flags re: Hasan’s activities. Apparently the arbitrary burden of proof hadn’t been met in any of those cases either, and we must certainly cling to the liberal facsimile of “due process” as yet another excuse to step aside and yell “Y’all come on in, the waters fine – heres yer cash prize and a target to shoot at”. Can the NSA can’provide a single example of diversion to validate the effectiveness of this program? No. Not one.

People are dying because the metamorons in charge are more concerned with policing the activities of citizens instead of protecting them. Showing the natives just how expendable our troops, munitions, bases and officials are by allowing them to be guarded by natives instead of trained US personnel. Refusing to allow those guards *bullets, because it’s too unfriendly.
These people are f’ing idiots.

NSA spying equating to crediting Clinton with any defense cred at all is laughable, with all due respect.

Recon5 on December 27, 2013 at 3:09 PM

Totally OT but you gotta read this . . .
Especially the comments; they are priceless.

That is all.
Back to outgassing.

Bubba Redneck on December 27, 2013 at 3:10 PM

Have never had good luck with the link tab:

Bubba Redneck on December 27, 2013 at 3:11 PM

It’s true that the wording of the Bill of Rights protects people from “unreasonable” searches and seizures. But to actually argue that a collection of information about citizens that you can call “vacuuming up” data qualifies as “reasonable” under that provision is so ludicrous on its face as to be laughable.

Shump on December 27, 2013 at 3:14 PM

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.

The flight school where some of them trained warned the FBI about suspicious behavior (gee, they aren’t interested in take off or landing.) The Russians warned us about the Boston Marathon bombers.

How well did either of those turn out? If you collect too much data, it is self defeating because you can’t possibly sift through all of it to find the nuggets you want.

rbj on December 27, 2013 at 3:15 PM

This guy has been corrupted by congressman King. All this crap is political and has little or nothing to do with the Constitution.

rplat on December 27, 2013 at 3:19 PM

a Supreme Court hearing to settle the circuit split is a fait accompli.

Well, we certainly know how obama’s well-paid buttboy, John Roberts, will vote.

Pork-Chop on December 27, 2013 at 3:19 PM

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.

The flight school where some of them trained warned the FBI about suspicious behavior (gee, they aren’t interested in take off or landing.) The Russians warned us about the Boston Marathon bombers.

How well did either of those turn out? If you collect too much data, it is self defeating because you can’t possibly sift through all of it to find the nuggets you want.

rbj on December 27, 2013 at 3:15 PM

Excellent observations, rbj. Same thing as to the notoriously exploited “immigration” issue — it’s really a case of enforcement, not a system “broken” but the fact that the observations exist, are sound, are attempted to be shared among the population — WITHOUT these invasive data minings — yet are oftentimes ignored or disregarded by those who would otherwise make a difference.

There were a LOT of concerned observations shared prior to 9/11, from what I’ve read (and that means there’s likely more that I haven’t read, that isn’t made public), that were not acted upon as to ‘enforcement’ or prevention/investigation…

So I tend to agree with others who claim the NSA “gathering” is not only excessive but downright obscene.

Lourdes on December 27, 2013 at 3:25 PM

It boils down to this: Judge Leon admitted that Smith was on point, but decided it was outdated due to technological advances.

That’s not one of the options for a judge. He’s just inventing law because he doesn’t agree with the controlling authority. This is exactly what conservatives have been complaining about liberal judges for over half a century.

It doesn’t matter who appointed who. Many judges have turned out to be the opposite of what they were supposed to be by the President who appointed them, the legal community, and the press.

Shortly after leaving office, President Eisenhower was asked what were his greatest achievements. He demurred, saying it should be left to history to judge “- but my two biggest mistakes are sitting on the Supreme Court.”

Adjoran on December 27, 2013 at 3:29 PM

The flight school where some of them trained warned the FBI about suspicious behavior (gee, they aren’t interested in take off or landing.) The Russians warned us about the Boston Marathon bombers.

How well did either of those turn out? If you collect too much data, it is self defeating because you can’t possibly sift through all of it to find the nuggets you want.

rbj on December 27, 2013 at 3:15 PM

In addition, all of the important information was on Moussaoui’s computer, and he had already been actually ARRESTED for immigration violations – not being an American to begin with. There was no need for any major metadata sweeps of Americans, just the simple examination of the property of an ILLEGAL who was already arrested and in custody.

Of course, when it comes to illegals we all know that Barky grants them dictatorial absolution and free “legal” residency while Rubio and most of the GOP turds won’t even think of impeaching Barky for his un-Constitutional act of tyranny and idiocy but have jumped in head-first to try to pander to ilegal aliens more than the Indonesian dog-eating imbecile.

So, nothing would change. Innocent Americans who the govenrment has no reason to collect data (or metadata) on would continue to be ilegally searched while illegals would get away with nothing happening to them and all of their papers and property would be triply protected (even after they were arrested – as if there will even be any more arresting of illegals for being illegal) to the detriment of the Americans who have all been placed under suspicion by a treasonous, feral, out-of-control government.

ThePrimordialOrderedPair on December 27, 2013 at 3:32 PM

Collecting metadata is legal. The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

This web site does it ( I presume).

What isn’t legal is listening to private phone calls and viewing private e-mails without a warrant.

MichaelGabriel on December 27, 2013 at 3:33 PM

Collecting metadata is legal. The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

MichaelGabriel on December 27, 2013 at 3:33 PM

Do you not understand the difference between a private company and government?

ThePrimordialOrderedPair on December 27, 2013 at 3:36 PM

It’s fun to parse these legal niceties

wahoo!!! party at Allah’s house! *BYCL

*bring your own case of law

DanMan on December 27, 2013 at 3:45 PM

Ultimately, this is the old debate between viewing terrorism as a matter of national security or of law enforcement.

If they had stopped terrorist attacks it might be.

whatcat on December 27, 2013 at 3:46 PM

What isn’t legal is listening to private phone calls and viewing private e-mails without a warrant.

MichaelGabriel on December 27, 2013 at 3:33 PM

Which the government did illegally in the James Rosen case. Or more accurately, they lied to get a FISA warrant then they lied about the fact that they lied.

For that reason alone naive idiots like you should be ignored. The state spying on citizens like the Stasi or NKVD should be alarming to us all. How long do you suppose it will be before the government decides that they have the “right” to troll for illegal activity (based on suspect domestic numbers)?

You are indeed a fool to trust Obama.

Happy Nomad on December 27, 2013 at 3:48 PM

Though I acknowledge that there are a lot of mentally and emotionally disturbed people today (likely, always have been), I am highly suspect of the motives behind WHY Obamacare has made it a priority to include “mental health” care, so it’s being called, in it’s legislation. And that out of the minds of Pelosi, Biden, Obama, to name a disturbed few.

Lourdes on December 27, 2013 at 2:48 PM

You got it. These Commies are not above exploiting health issues to further their fascist agenda. In NY due to the passing of the SafeAct by Herr Cuomo ( a vulgar assault on our 2nd Amendment rights) doctors are now encouraged to report anyone who seeks therapy if the doctor happens to know they may possess weapons. Doesn’t matter if they therapy is for the fear of kittens, it’s up to the doctors discretion. If the doc doesn’t like guns who’s to stop them from abusing their patient/client privilege. The police once notified have the authority to confiscate the guns on the premise of public safety. In reality this is just a method for gun grabbing and will prevent people from seeking needed treatment. Of course the first time these bumbling idiots went after a guy for once having taken anti-anxiety drugs, they got the wrong guy.

http://www.nystateofpolitics.com/2013/04/attorney-claims-state-officials-intentionally-violated-hippa-to-enforce-safe-act/

http://hotair.com/archives/2013/04/13/dont-be-fooled-gun-confiscation-has-already-begun-in-ny/

The NSA has taken thier abuse of authority a step further in what amounts to the Thought Police. The lesson here I guess is don’t even talk to or email or friends if you happen to have anxiety or discontent. Truly scary times.

Buttercup on December 27, 2013 at 3:48 PM

Where does this argument end? Having all data on all people to be trampled through will, of course, reveal and allow to be revealed certain statistical patterns of behavior prediction, all which violate the 4th Amendment. In fact, it is exactly this scenario for which the 4th Amendment was issued… the Pre-cog. The icing on the cake is that these aren’t private citizens doing this either, it’s the Government. This is Orwellian no matter how you look at it.

HopeHeFails on December 27, 2013 at 3:49 PM

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.

Which has absolutely ZERO to do with the government taking custody of that information absent due process. The 4th amendment is a prohibition on GOVERNMENT, not Verizon.

Is this what passes for logic in the judiciary?

Wendya on December 27, 2013 at 3:49 PM

Because: I’m sure there’s more than one person in DC that sees the middle-class white man as the terrorist.

Lourdes on December 27, 2013 at 2:57 PM

Maybe not a terrorist but definitely an enemy of the state. Obama can give Raul Castro a bro-hug but the middle-class white man is the enemy.

Happy Nomad on December 27, 2013 at 3:51 PM

We’re supposed to trust an administration who considers Tea Party Patriots “Extremists”.

Buttercup on December 27, 2013 at 3:52 PM

so the jack boots can bust down your door without a warrant so long as they are looking for terrorists?

Labamigo on December 27, 2013 at 3:52 PM

Why do we even have judges if they’re just going to robotically agree with whatever the government wants indifferent to the law?

Why have a justice department?

Seems it only serves to give fig leafs to those in power for yet another power grab.

This is a violation of the forth amendment and a violation of the fifth amendment.

That is a violation of search and seizure and a violation of due process.

But you know what NSA… Fine. Next step will be everyone encrypts their communication so the meta data becomes useless.

Happy now? Jerks.

Karmashock on December 27, 2013 at 3:56 PM

Do you not understand the difference between a private company and government?

ThePrimordialOrderedPair on December 27, 2013 at 3:36 PM

For that reason alone naive idiots like you should be ignored. The state spying on citizens like the Stasi or NKVD should be alarming to us all. How long do you suppose it will be before the government decides that they have the “right” to troll for illegal activity (based on suspect domestic numbers)?

You are indeed a fool to trust Obama.

Happy Nomad on December 27, 2013 at 3:48 PM

You both completely misunderstand me.

I didn’t say I trusted the government or Obama. I didn’t say I like it.

I just pointed out the difference between what is legal to be collected and what is not.

Naïve idiot. yea, right.

MichaelGabriel on December 27, 2013 at 3:58 PM

As I was saying to a friend of mine, snooping gives a false sense of security. The only thing that will stop the next terror attack is old-fashioned legwork, and a good sense of logistics. Someone wanting to commit an act of terror at Point B, when his/her assets are at Point A will have to move those assets. What would that look like? How can we distinguish this from normal movement? In trying to gather as much data as possible, you can miss that.

Sekhmet on December 27, 2013 at 3:59 PM

The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

MichaelGabriel on December 27, 2013 at 3:33 PM

One has the free will to subscribe to a phone company for their service and would expect a bill itemizing the usage.

My credit card company also itemizes my usage. This is good. I expect it.

I don’t recall signing up for this NSA service although I’m sure I pony up for the bill involuntarily.

Buttercup on December 27, 2013 at 4:02 PM

Collecting metadata is legal. The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

MichaelGabriel on December 27, 2013 at 3:33 PM

What is the Govt’s value-add in collecting that data? It might be one thing if the phone company was Govt owned and they reviewed the data to see what’s what. Private companies do that in order to bill customer X for the services that X used and accordingly to customer Y. The Govt needs a warrant to go and get that data. just because SCOTUS said customer X has no reasonable expectation of privacy does not mean SCOTUS is unerringly right, anymore than they were right with other decisions later overturned.

Rather than focus on legal vs illegal as points of law, one needs to peel the layers and see if it is even constitutional.

Start with the founding fathers. Why did they think that a man had the right to protect his papers from unreasonable searches and that a warrant must be had? Because they experienced 1st hand from the Redcoats. They would stop a person, search him for papers and if they found anything incriminating, they would either hang him as a spy on the spot or take him into custody. So in writting up the Bill of Rights, one could say that the 4th Amendment was added in memory of Nathan Hale.

Granted, we cannot let the Constitution be a suicide pact, but we also need to ensure the rights of the individual is secured. So how do we balance these two, liberty vs security? Warrants. Nothing justifies warrantless wiretapping. To countenance this is to give the Govt discretion and hope that our trust is not misplaced.

Has this Govt given you grounds to believe that you won’t be swept up due to a difference of politics? I would rather risk a terrorist atack that harms me, than give the Govt carte blanche to attack me, simply because I might be a tea partier or what not.

As others have noted, in this WOT, the Govt has dropped the ball so many times when someone DID see something wrong, reported it, only to get lost in the bureaucracy. But you’re fine with surreneding any and everything to the same Govt, so that if someone within the Govt perceives you as the enemy, they can go after you without anything standing in their way?

There are times when liberty trumps security, otherwise, you’ll have no security at all. Wait a minute, someone said that a long, long time ago. Nevermind, probably some dead old rich white man. Carry on.

Sweeping up data from a 3rd party is the same as sweeping up my papers. What if I am the 3rd party? Why, simply because I own a business must surrender my records to the Govt on their say so? If they need info on one of my customers, they need a warrant.

If you condone this, then naturally, you have no problem with the Govt vacuuming up your medical/health data or your financial data???

AH_C on December 27, 2013 at 4:12 PM

Time to revamp the Federal Judiciary system…

katy on December 27, 2013 at 2:55 PM

You’re a few decades too late.

HiJack on December 27, 2013 at 4:22 PM

If you condone this, then naturally, you have no problem with the Govt vacuuming up your medical/health data or your financial data???

AH_C on December 27, 2013 at 4:12 PM

When I file your tax returns, I willingly give the government my name, address social security number and income. It is legally required.

I will not sign up for Obamacare precisely because I do not the government having that data. I will pay the penalty.

Reading comprehension is seriously f*cked around here. I do not condone the government collecting metadata. All I’m saying is that it is currently legal. Pick up your phone and dial a number. By the end of that day it will be stored at the NSA. Until that is changed, by the courts or the congress, it will continue.

MichaelGabriel on December 27, 2013 at 4:23 PM

You both completely misunderstand me.

I didn’t say I trusted the government or Obama. I didn’t say I like it.

I just pointed out the difference between what is legal to be collected and what is not.

Naïve idiot. yea, right.

MichaelGabriel on December 27, 2013 at 3:58 PM

It shows how emotional we can get when it comes to our privacy.

HiJack on December 27, 2013 at 4:24 PM

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.

“Your honor, this envelope came for you today in the mail. It says DO NOT BEND: PHOTOS INSIDE.”

Opens Envelope

“Uh….I suddenly feel the NSA’s metadata program is great.”

portlandon on December 27, 2013 at 4:25 PM

When I file your tax returns, I willingly give the government my name, address social security number and income. It is legally required.

MichaelGabriel on December 27, 2013 at 4:23 PM

I know you’re not going to believe me, but given the chance and the resources to do so, I can prove to you that it is most definitely not legally required to file tax returns, because if it was the government could not use them against you in court for cheating on them. I can prove that beyond any doubt, except in a courtroom where it’s not allowed.

HiJack on December 27, 2013 at 4:27 PM

The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

MichaelGabriel on December 27, 2013 at 3:33 PM

But they do not ssend me an overview of these conversations.

Rio Linda Refugee on December 27, 2013 at 4:27 PM

You both completely misunderstand me.

I didn’t say I trusted the government or Obama. I didn’t say I like it.

I just pointed out the difference between what is legal to be collected and what is not.

MichaelGabriel on December 27, 2013 at 3:58 PM

You cannot compare what private individuals and companies can do to government to determine if some action is “legal”.

The Constitution describes what is legal for the federal government to do and it may, or may not, be something that is legal for private individuals, companies, or even states and vice versa. That is what I pointed out to you.

Just because I do something doesn’t make it legal for the federal government to do the same thing. The two have NOTHING to do with each other. ANd, just as obviously, just because the federal government can do something doesn’t make it legal for me to do. You trouncedd all over this distinction, which is rather important.

ThePrimordialOrderedPair on December 27, 2013 at 4:29 PM

Private companies do that in order to bill customer X for the services that X used and accordingly to customer Y. The Govt needs a warrant to go and get that data. just because SCOTUS said customer X has no reasonable expectation of privacy does not mean SCOTUS is unerringly right, anymore than they were right with other decisions later overturned.

AH_C on December 27, 2013 at 4:12 PM

This is a key to this. One of the problems with Smith is that it assumed that there was no contractual basis on which to continue the privacy of certain data. The phone company collects this data as part of its relationship with me – a relationship which is private and, therefore, should not be open to intrusion by the government.

Especially, if I contract with a company that says “We will never give your data to a third party except due to a valid warrant or subpoena” then that is part of my contractual arrangement with them and the government should not have any right to lay claim to that data. Period. Just because there is a “third-party” involved in my communications does should not mean I lose all my rights.

One other item that it seems both these judges are missing is that in 1975 there was only one phone company. Wherever you resided, there was no choice in phone service provider. It was considered a utility. Nowadays, I have my choice.

GWB on December 27, 2013 at 4:36 PM

Great commentary, AllahPundit. Very thorough.

davidk on December 27, 2013 at 4:44 PM

Remember what this is all about. If you didn’t have this thorough intrusion, it would be difficult for Muslims and Islam to flourish in America. The NSA is looking for the rare Al-Q bad apple that wants only to give sacred Islam a bad name in the filthy eyes of the unbeliever. America is fairly safe for Muslims as a result (except for the oppressive Islamophobia the Muslims in America are victims of since 9/11, ) so you should be grateful to government. It is they that secure Americas privilege of having Islam and its adherents in your midst free to share their treasures and wisdom with you.

BL@KBIRD on December 27, 2013 at 5:01 PM

When I file your tax returns, I willingly give the government my name, address social security number and income. It is legally required.

MichaelGabriel on December 27, 2013 at 4:23 PM

You “willingly” provide that information at the point of a gun, moron.

Wendya on December 27, 2013 at 5:05 PM

This is not going away, the cat is out of the proverbial bag and there is no way that any agency the size and scope of the NSA is suddenly going to become smaller or more narrowly defined in their mission.

When the capability exists for a smart hacker to sit at home like I am, in front of a workstation and extract private data from far and wide (see Target stores), the NSA will find ways to get what they want, when they want it without leaving barely a trace.

If it wasn’t for Snowden, we wouldn’t have known better. But because of Snowden, the NSA will know better, and refine their methods, security and secrecy.

Data has to get from here to there, and along those routes, it’s open season for data mining.

They didn’t build that new data center in Utah to set up an auction site.

Walter L. Newton on December 27, 2013 at 5:10 PM

You “willingly” provide that information at the point of a gun, moron.

Wendya on December 27, 2013 at 5:05 PM

Really? So I obey the laws, follow the rules. At least I don’t freak about it.

Either qualifies me as being a moron or a law abiding American citizen.

MichaelGabriel on December 27, 2013 at 5:25 PM

If it wasn’t for Snowden, we wouldn’t have known better. But because of Snowden, the NSA will know better,

Walter L. Newton on December 27, 2013 at 5:10 PM

That’s not true. We knew about NSA snooping without Snowden. In fact, Barky and his junta were arguing cases in court and trying to lean on Bush (who had foreign surveillance and only when Americans were part of conversations with foreign terrorist suspects did they get picked up), but Barky and his junta went well beyond anything Bush did. If you don’t believe me, go back to pre-Snowden threads about this and check it out. Snowden gave extra details but the information was really known, anyway – the broad strokes of it. This was all happening while Barky and his junta were trying to press treason cases against journalists for merely investigating the screwups of his bunch of morons and those under him while Bush had let actual traitors in journalism go without so much as a peep (like the WaPo and NYSlimes, which had actually revealed serious national security info to try and take Bush down).

I really don’t get how people forget all of this stuff so quickly. Yes, there has been an avalanche of criminal, anti-American and un-Constitutional acts from the Indonesian and his Sukarno-like rule but that still doesn’t excuse peopel from forgetting stuff that just happened. Heck, most people already forget the details of the Boston terror chase, the fiasco that saw para-military goons lock up the free citizens of a city, shoot everything in sight, never even get the guys (even as they had them pinned down and, thank G-d, one drove over the other and put him out of commission), only to have it all ended when a private citizen was “allowed” to go out of his house and found the muzzie douchebag bleeding in his boat. But, this laughable junta and MSM would happily bring up the Boston terror chase fiasco as an argument for more militarization and allowing feral government troops to take over domestic areas … to “stop the terror” … LOL.

Snowden didn’t do much that people didn’t already have a good inkling about, and some that was already winding its way through the courts. But, the GOP could never be bothered to take a stand and most of the nation was not concerned with the treasonous, 84 IQ dipsh!t dog-eater who they had actually re-elected after he had been the most miserable failure in history and an America-hater of historic proportion – ahistoric, even!

Aside, Snowden was a Barky supporter.

ThePrimordialOrderedPair on December 27, 2013 at 5:30 PM

I don’t trust any of them, republican or communist, plain and simple. James Clapper lied to us about the NSA program and the Muslim Brotherhood; Obama lies to us on a daily basis; republicans and the communist pass bills that we are mandated to follow but they are exempt; RINOS, even after we delivered for them in 2010, and the communist declaring war on the Tea Party calling them “extremist”; won’t secure the border in the name of national security but they need to treat every American as an enemy and spy on them; I could add to the list ad infinitum. Please tell me why I should trust any of them other than a small few, to do the right thing. Been fooled and lied to to many times.

Jackson on December 27, 2013 at 5:41 PM

Judges are among the most lazy of professionals. They rely upon precedent, which basically assumes everything ever done before you was 100% correct. They refuse to spend time really examining things.

The .gov does not work for you and they are completely unaccountable. You will be surprised how quickly it will turn on those who profess the utmost of loyalty and patriotism.

antisense on December 27, 2013 at 7:16 PM

MichaelGabriel on December 27, 2013 at 4:23 PM

I’ll grant that we’re talking past each other and I’ll grant that this is an emotional, nay, deeply fundamental issue that goes to the core of God given inalienable rights that precedes and trumps government.

Where folks jumped you is by the lack of a bright red line between a private act/right vs a govt deniedtthe same rights. Or as oboobi would put it; “a charter of negative rights”. Being pithy is a gift but no good if people come to the wrong conclusion.

Again this goes to the notion that we the people must jealously and if need be violently protect our rights and not leave it to others to safeguard them for us. Bottomline, if the govt wishes to excercise it’s duty (not right) to protect us, it must do so on a case by case basis and never, contrary to some idiots in black dresses, do so in a blanket approach-casting a net and see what gets snared. Never, not even under the most noble of reason.

AH_C on December 27, 2013 at 7:19 PM

AH_C on December 27, 2013 at 7:19 PM

I just made the observation that collecting metadata is currently legal, which is what the federal judge said, without commenting about whether I liked it or not.

The reaction was pretty damn discouraging.

MichaelGabriel on December 27, 2013 at 9:12 PM

It’s called shopping a Judge or my expert Judge cancels out your expert judge. The arguments before the Judges may not have been the same, only similar in order to produce different results.

jpcpt03 on December 27, 2013 at 9:36 PM

The end result will be both decisions are on the path to the Supreme Court.

Snake307 on December 28, 2013 at 12:38 AM

The Supreme Court will, of course, find in favor of the Government. The only possible vote on the other side might be Justice Thomas. Scalia, Alito, Roberts and Kennedy never met a police power they didn’t like, and Breyer and the ladies will never disagree with a Democrat administration on an issue so serious.

notropis on December 28, 2013 at 2:41 AM

We’re supposed to trust an administration who considers Tea Party Patriots “Extremists”.

Buttercup on December 27, 2013 at 3:52 PM

I read a few years ago — from somewhere around Obama’s re-election — that the DHS had deployed a decision/guideline to agents nationwide that it deemed users on the internet to pose a security threat/risk “IF” they had user IDs that were IN ALL CAPS, and/or had icons/avatars that were “symbols” of whatever (just symbols, the use of symbols as an avatar).

Then came the thing about the Tea Party being subversive or whatever in DHS parlance.

Not a joke.

Lourdes on December 28, 2013 at 3:47 AM

It’s called shopping a Judge or my expert Judge cancels out your expert judge. The arguments before the Judges may not have been the same, only similar in order to produce different results.

jpcpt03 on December 27, 2013 at 9:36 PM

Yes, and it’s common practice. Err, rather, it’s good practice to ensure your (whatever) case will be heard before a judge you can at least rely on to not impose his/her socio-political will on the issues before them. One can’t just “go before a judge,” as in, any judge, and assume you’ll be heard fairly…

Lourdes on December 28, 2013 at 3:50 AM

that’s what you get when you put a pervert in robes.

papertiger on December 28, 2013 at 4:04 AM

Overthrowing a tyrannical government is also legal and a moral obligation according to our Founding Fathers.

trs on December 28, 2013 at 7:45 AM

When I file your tax returns, I willingly give the government my name, address social security number and income. It is legally required.

MichaelGabriel on December 27, 2013 at 4:23 PM

Sorry but that just sounds silly.

CWchangedhisNicagain on December 28, 2013 at 8:51 AM

Collecting metadata is legal. The phone companies do it. They send you a list of all the phone numbers and times you call on your bill.

MichaelGabriel on December 27, 2013 at 3:33 PM

Why even post this.Just worthless. There is no comparison to the government doing it and you through free will allowing sprint to do it.

CWchangedhisNicagain on December 28, 2013 at 8:53 AM

Sorry but that just sounds silly.

CWchangedhisNicagain on December 28, 2013 at 8:51 AM

Do you not file taxes?

Maybe you’re not a legal U.S. citizen.

Maybe you don’t pay taxes, which support government services that I do agree with, like the military and NASA.

Maybe you’re living on welfare, in which case, I pay for your housing, your food, your cell phone, your children, your health care.

Maybe you think you’re special and above the obligations of American citizens.

In any case, I don’t give a rats ass what you consider silly.

MichaelGabriel on December 28, 2013 at 10:59 AM

Why even post this.Just worthless. There is no comparison to the government doing it and you through free will allowing sprint to do it.

CWchangedhisNicagain on December 28, 2013 at 8:53 AM

When you pull up to a traffic light, look up. You’re likely to see a camera mounted on the pole.

If you don’t like it, don’t drive.

Either that or complain endlessly on Hot Air about something you’re not motivated enough about to change.

To paraphrase a quote form Animal House:

“Fear, anger and paranoia is no way to go through life.”

MichaelGabriel on December 28, 2013 at 11:10 AM

I have an idea. You hold Judge Pauley down, and I’ll kick him in the balls about fifty times.

That way he can be a eunoch in fact as well as habit.

papertiger on December 28, 2013 at 12:10 PM

Privacy is dead. Just because someone lacks a reasonable expectation of privacy when he goes for a drive, it does not mean that the government is entitled to monitor, record and analyze every place a person goes.

The same for phone data. Just because I use a phone and the data is owned by the TelCo does not mean that the Feds are entitled to record, analyze every phone call I make.

Not without a warrant. There is nothing “reasonable” about such searching. In fact, it clearly and obviously is a circumvention of the intent of our 4th Amendment.

That said, the law is what the courts rule it to be. Liberty is dying in the US.

MJBrutus on December 28, 2013 at 12:22 PM

Remember when democrats pretended to care about a right to privacy.

This ruling means Roe v Wade was exclusively about legalizing the murder of babies.

papertiger on December 28, 2013 at 12:25 PM

Why play coy? Just make it mandatory. Put it in the building code. All single family and multiple family dwellings must have NSA monitors built in, just incase someone somewhere says something out loud that Barrack Obama doesn’t approve of.

papertiger on December 28, 2013 at 12:31 PM