Judge Says NSA Phone Surveillance Is Legal

The National Security Agency's bulk collection of data from phone companies is legal, a federal judge ruled, dismissing a significant court challenge to that practice and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge William H. Pauley III in Manhattan sided with the government in his decision, calling the collection program a "vital tool" to combat terrorism. It represents the government's "counter-punch" against the diffuse networks that connect modern terrorist groups such as al Qaeda, he said in an opinion released on Friday.

The ruling comes less than two weeks after a federal judge in the District of Columbia took on the same issue and came to a diametrically opposed conclusion, saying the program "almost certainly" violates the Constitution.

The New York case was brought in June by the American Civil Liberties Union, which claimed that the NSA was violating the group's constitutional rights by collecting metadata from the ACLU's phone calls. In the lawsuit, the group said the NSA program was "akin to snatching every American's address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where."

It was among the first big legal challenges against the NSA data-collection program after the practice was disclosed in June by former NSA contractor Edward Snowden. The ACLU sought a court order declaring that the mass call-logging violated federal law governing foreign-intelligence surveillance, as well as constitutional free-speech and search-and-seizure protections.

Judge Pauley, an appointee of President Bill Clinton, disagreed. "The right to be free from searches and seizures is fundamental, but not absolute," he wrote. "Every day, people voluntarily surrender personal and seemingly-private information to trans-national corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection."

Judge Pauley cited a 1979 Supreme Court decision, Smith v. Maryland, that held individuals have no "legitimate expectation of privacy" concerning telephone numbers they dial. That is because they hand that information over to a third party—a telecommunications provider—in order to connect the call, and telephone customers know those phone companies have the ability to make a record of the numbers they call, the court found.

In the D.C. court ruling on phone surveillance earlier this month, Judge Richard Leon ruled in favor of Larry Klayman, a conservative activist and lawyer who also sued the NSA in June, claiming the program violated his Fourth Amendment right against unreasonable search.

Judge Leon, an appointee of President George W. Bush, said phone technology and the ways in which phone usage is tracked have changed so much that the Smith v. Maryland ruling is of little use for evaluating the NSA program. "The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979," he wrote.

Judge Pauley rejected that argument in his Friday decision, noting that while people may use their telephones in different ways now than they did 34 years ago, "their relationship with their telecommunications providers has not changed.… The fact that there are more calls placed does not undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata."

The "government's subsequent querying of the telephony metadata does not implicate the Fourth Amendment—any more than a law enforcement officer's query of the FBI's fingerprint or DNA databases to identify someone," Judge Pauley wrote.

During arguments last month, Judge Pauley appeared receptive to the idea that Americans enjoy some level of privacy in their phone records. But in his ruling, the judge said he found no evidence that the government used any of the bulk metadata for any purpose other than investigating and disrupting terrorist attacks.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice," he wrote. "As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific."

The ACLU said on Friday that it was "extremely disappointed" with the decision. "We intend to appeal and look forward to making our case in the Second Circuit."

A spokeswoman for the NSA deferred comment on the case to the Justice Department, which said in a statement that "we are pleased the court found the NSA's bulk-telephony metadata collection program to be lawful."

Rep. Peter King, the Republican chairman of the House's Homeland Security Subcommittee on Counterintelligence and Terrorism, called the decision "a victory for the patriotic men and women of the NSA."