A federal judge in New York City last week ruled that the National Security Agency’s (NSA) bulk collection of Americans’ telephone call data is constitutional, contradicting a ruling eleven days earlier by a federal judge in Washington, DC, that the spying violates the Constitution. With appeals promised in both cases, the issue should reach the U.S. Supreme Court in a few years.

Since at least 2006, the secret Foreign Intelligence Surveillance Court (FISC) has allowed the NSA to seize more than 1 trillion records from American telecom companies without a warrant, including phone numbers of both parties to all calls, international mobile subscriber identity numbers of mobile callers, calling card numbers, and the time and length of all calls. U.S. District Judge William Pauley, a Bill Clinton appointee, called the spying a “vital tool” of counter-terrorism, while Judge Richard Leon, named to the bench by George W. Bush, wrote that the nation’s founders would be “aghast” at  the “almost Orwellian” program.

The two opinions certainly “tee up” the relevant issues for their respective appeals courts, as Judge Pauley’s opinion in ACLU v. Clapper, “is the exact opposite of Judge Leon’s [Klayman v. Obama] in every way, substantively and rhetorically,” Orin S. Kerr, a law professor at George Washington University, told The New York Times. “It’s matter and antimatter.” Three striking differences between the two opinions—rhetorical, factual and legal—illustrate the chasm between the two.

Rhetorically, the opinions commence from radically different starting points. Judge Leon starts his 68-page ruling with the facts that led directly to the June 2013 filing of the ACLU complaint before him, while Judge Pauley commences his 53-page opinion twelve years earlier.

Judge Leon wrote:

“On June 5, 2013, the British newspaper The Guardian reported the first of several ‘leaks’ of classified material from Edward Snowden, a former NSA contract employee, which have revealed … multiple U.S. government intelligence collection and surveillance programs… [including] a FISC order … compelling [telecoms] to produce to the NSA on ‘an ongoing daily basis’ ... ‘telephony metadata’ created by [them].” According to the news article, this order “show[ed] . . . that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk-regardless of whether they are suspected of any wrongdoing.”

Judge Pauley:

“The September 11th terrorist attacks revealed … just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us … and it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.”

That factual issue—whether the indiscriminate seizure of American telephony metadata is necessary or even contributes to national security—was the source of conflict as well. Judge Pauley followed his introduction about 9/11 with an endorsement of the government’s position that domestic spying has helped disrupt bomb plots against the New York subways, the New York Stock Exchange and a Danish newspaper. Devoting considerable space to the case of Khalid al-Mihdhar, a 9/11 hijacker who was living in San Diego in 2001, Pauley wrote that “NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States,” but that “telephony metadata … might have permitted the NSA to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” and possibly foiled the 9/11 attack.

Judge Leon, however, found two weeks ago that the program did not help the government fight terrorism, concluding that “the government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”

Ironically for Judge Pauley and the Obama administration, the President’s own NSA presidential review panel released a report in mid-December debunking reliance on the al-Mihdhar case and concluding that the spying “was not essential to preventing attacks,” and could be safely replaced with less intrusive methods. The panel findings came after ProPublica reported in June that U.S. intelligence knew al-Mihdhar’s identity “long before 9/11 and had the ability find him, but they failed to do so.”
 

The judges disagreed on the law as well, in particular the 1979 Supreme Court case of Smith v. Maryland, which the Obama administration and the FISC have cited to find the spying program constitutional. In Smith, the court held a suspected purse-snatcher, who had been threatening his victim via telephone calls, had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone, which police had obtained from the phone company without a warrant.

According to Judge Pauley, “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” hence the government can seize records of every phone call made by every American without a warrant or indeed any suspicion of wrongdoing. Rejecting suggestions that technological changes since 1979—when rotary phones were still more widely used than touch tone models—made any difference to the law, Pauley wrote that customers’ “relationship with their telecommunications providers has not changed” since 1979. Pauley nevertheless admitted that the collection program, “if unchecked, imperils the civil liberties of every citizen.”
 

Judge Leon, however, ruled that Smith no longer applies in the digital age, writing that “present-day circumstances—the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies—[have] become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that … Smith does not apply.” In reaching that conclusion, Leon was following the leads of the presidential review panel, which questioned whether Smith was “still good law,” and two recent Supreme Court opinions that have raised the same issue.

-Matt Bewig

To Learn More:

Judge Rules NSA Bulk Telephone Metadata Spying Is Lawful (by David Kravets, Wired)

Judge Upholds N.S.A.’s Bulk Collection of Data on Calls (by Adam Liptak and Michael S. Schmidt, New York Times)

NSA Collection of Phone Data is Lawful, Federal Judge Rules (by Sari Horwitz, Washington Post)

NSA's Surveillance of Americans Survives ACLU's Federal Challenge (by Nick Divito, Courthouse News)

Judge on NSA Case Cites 9/11 Report, But It Doesn’t Actually Support His Ruling (by Justin Elliott, ProPublica)

ACLU v. Clapper (pdf)

“Orwellian” NSA Phone Spying Probably Unconstitutional, Rules Outraged Federal Judge (by Danny Biederman and Noel Brinkerhoff, AllGov)

NSA Phone Data Collection Made No Difference to National Security (by Noel Brinkerhoff and Danny Biederman, AllGov)