A US federal judge has ruled that the NSA is within its rights to harvest millions of innocent Americans' telephone call records under Section 215 of the Patriot Act – and that the dragnet is fine under the Fourth Amendment since the data was collected by a third-party telco, not the government.
The decision kicks the debate over the legality of the intelligence agency's controversial mass-surveillance operations closer to the Supreme Court.
"Robust discussions are underway across the nation, in Congress, and at the White House, the question for this court is whether the government's bulk telephony metadata program is lawful. This court finds it is," said US District Judge William Pauley in his ruling today.
The court case was filed by civil-rights campaigners the ACLU in June, less than a week after the first document released by NSA whistleblower Edward Snowden showed that Verizon was supplying metadata on US mobile phone calls. As Verizon subscribers, the ACLU sued to get the snooping stopped with an injunction.
"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relevant statutes, understates the privacy implications of the government's surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections," said ACLU deputy legal director Jameel Jaffer.
"As another federal judge and the president's own review group concluded last week, the National Security Agency's bulk collection of telephony data constitutes a serious invasion of Americans' privacy. We intend to appeal and look forward to making our case in the Second Circuit."
In his ruling Judge Pauley said that surveillance techniques such as those deployed by the NSA were necessary to stop terrorism, citing three cases where such data had been used to stop bomb attacks on the New York subway system, stock exchange, and other targets.
"Like the 911 Commission observed: the choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil," he wrote.
"A court's solemn duty is 'to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression."
Judge Pauley's reasoning contrasts sharply with the December 16 ruling from District of Columbia Judge Richard J Leon, also on the legality of the Verizon data slurp. The judge described the NSA's systems as "almost Orwellian," and said he wasn't convinced about the government's claims that such data was needed for rapid-response anti-terrorism. Judge Leon was ruling in a lawsuit brought against the Obama administration by lawyer Larry Klayman and other privacy campaigners.
In both cases the judges gave leave to appeal, and it now looks certain that the Supreme Court will have to rule on the matter. How quickly it does so is largely up to the nine-person panel itself, but it seems likely that the court will rule sooner rather than later. ®