The National Security Agency’s practice of collecting information about all telephone calls placed in, to and from the United States is lawful despite the potential civil liberties abuses inherent in such a “metadata” bank, a federal judge in Manhattan ruled Friday.
Southern District Judge William Pauley III (See Profile) concluded in American Civil Liberties Union v. Clapper, 13 Civ. 3994, that the NSA’s telephony metadata program is reasonable under the Fourth Amendment, given the “horrific” consequences of international terrorism as demonstrated on Sept. 11, 2001.
“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: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.”
He conceded that “if un-checked,” the program “imperils the civil liberties of every citizen.”
But he said it is subject to “extensive” oversight by the U.S. Department of Justice, the intelligence community, the Foreign Intelligence Surveillance Court and Congress.
Pauley wrote that abuses of the database have been “unintentional” and corrected by federal officials once the abuses have been discovered. The judge also observed that Americans voluntarily surrender “far more intrusive” personal information every day to vendors online and over the telephone than they reveal to the metadata collection system by placing or receiving calls.
Pauley said that had the telephony metadata system been in place in 2001, it might have intercepted seven calls made by hijacker Khalid al-Mihdhar and allowed the FBI and other security agencies to make sense of disparate pieces of intelligence information and foil the Sept. 11 hijackings.
The judge granted the federal government’s motion to dismiss the challenge to the data collection system. He also dismissed the ACLU’s motion for a preliminary injunction to halt the NSA’s collection of data. (See also the ACLU’s response to the motion to dismiss and the government’s response to the motion for a preliminary injunction.)
The ACLU, the ACLU Foundation, the New York Civil Liberties Union and the NYCLU’s Foundation brought the suit. It named as defendants James Clapper, director of national intelligence and four other high-ranking federal officials as defendants, including U.S. Attorney General Eric Holder and FBI Director James Comey.
The ACLU said Friday it would appeal Pauley’s ruling to the U.S. Court of Appeals for the Second Circuit.
“We are extremely disappointed with this decision, which 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, in a statement.
U.S. Justice Department spokesman Peter Carr said the agency was “pleased the court found the NSA’s bulk telephony metadata collection program to be lawful.”
The program entails the collection of the phone numbers of parties receiving and sending calls along with their date, time and duration.
It does not involve listening in on each call. Instead, it seeks to establish patterns of phone usage that may indicate terrorist activity.
Pauley said that the government cannot be asked to disclose evidence that would demonstrate the effectiveness of the program.
“The effectiveness of bulk telephony metadata collection cannot be seriously disputed,” Pauley wrote. “Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies.”
But the judge cited three instances where the system provided authorities with important information, including the arrest of Adis Medunjanin in connection with a 2009 conspiracy to bomb the New York subway system.
Pauley’s ruling contrasted with one issued Dec. 16 by Judge Richard Leon for the District Court for the District of Columbia, thus increasing the possibility that the U.S. Supreme Court will have to settle the matter.
Leon ruled in Klayman v. Obama, Civil Action No. 13-0851, that the data collection program “almost certainly” violates the Fourth Amendment and issued a temporary injunction against surveillance of the plaintiffs who had brought the lawsuit. But he stayed his ruling to give the government time to appeal.
Pauley made two passing references to Klayman in his ruling, but he did not directly explain why he had reached a different conclusion than Leon.
He did, however, conclude that Smith v. Maryland, 442 U.S. 735 (1979), which the federal government relied on in both Klayman and American Civil Liberties Union for the proposition that telephone calls have “no legitimate expectation” of privacy in calls to third parties, was not being read properly by the ACLU.
The ACLU maintained that the telephone information at issue belongs to callers. In fact, Pauley wrote, the information is “created and maintained” by Verizon.
“Under the Constitution, the distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information,” Pauley wrote, citing Smith, 422 U.S. at 742.
Leon dismissed the government’s argument that Smith—which involved the warrantless use of a “pen register”—permitted the bulk collection of telephone metadata. (The authorities use pen registers to record dialed numbers.) The D.C. judge said he was “convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search.”
Leon said the technology that enabled the government to store and analyze the metadata of every telephone user in the United States “is unlike anything that could have been conceived in 1979.” The judge added that the amount of information contained in phone records today is greater as well. He said he could no longer use “as my North Star a case that predates the rise of cell phones.”
Pauley likened hits on the bulk database indicating possible terrorist activities to matches of crime-scene DNA evidence contained in the DNA database maintained by the FBI.
“In the context of DNA querying, any match is of the DNA profile—and like telephony metadata additional investigative step[s] are required to link that DNA profile to an individual,” said Pauley.
The ACLU suit was filed in June just one week after The Guardian newspaper of Great Britain reported a then-classified order from the Foreign Intelligence Surveillance Court directing Verizon Business Network Services to turn over data on all its calls between April and July 2013.
As Pauley noted in his ruling the leaking of that and other court orders by former NSA contractor Edward Snowden prompted the litigation as well as prompting “robust discussions” about constitutional privacy and Fourth Amendment protections versus the collection of data by U.S. security agencies.
A White House review group recently proposed restrictions on NSA surveillance (NYLJ, Dec. 20).
But Pauley said his role is limited to determining whether NSA’s collection of bulk telephone records is legal.
“This Court finds it is,” he wrote. “But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.”
Jaffer led a team of attorneys representing the American Civil Liberties Union that also included Alex Abdo, Brett Kaufman, Patrick Toomey and Catherine Crump.
Arthur Eisenberg and Christopher Dunn represented the New York Civil Liberties Union.
David Jones was lead attorney for a team at the Southern District U.S. Attorney’s Office, which also included Tara La Morte, Christopher Harwood and John Clopper.
@|Joel Stashenko can be contacted at email@example.com. Associated Press and The National Law Journal, an affiliate of the New York Law Journal, contributed to this story.