Judge rules NSA’s collection of telephony metadata is legal

In the opening paragraphs of his opinion, Judge Pauley noted that in the months before 9/11, the NSA intercepted seven calls made to an al Qaeda safe house in Yemen from the United States. The calls were from Khalid al-Mihdhar, who was living in San Diego and would later be one of the nineteen hijackers.

The NSA, however, “could not capture al-Mihdhar’s telephone number,” the judge wrote, and “NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”

“Telephony metadata would have furnished the missing information and 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,” Judge Pauley wrote.

Judge Leon, in his ruling, reached the opposite conclusion, writing that the government had failed to make the case that the program is needed to protect the nation. “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,” he wrote.

The presidential review team’s conclusion occupied the idle ground between the positions of the two judges. The review group said that he NSA “believes that on at least a few occasions” the program “has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world,” but that the review group’s own review suggested that the program “was not essential to preventing attacks,” and that less intrusive measures would work.

The review group did not recommend that that bulk storage of telephone metadata be stopped – but only that such bulk storage by the NSA be replaced by “a system in which such metadata is held instead either by private providers or by a private third party.” Access to the stored data, it said, should require a court order.

The Times notes that the two judges also reached different conclusions about the program’s constitutionality.

“While 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,” Judge Pauley wrote on Friday. “This court finds it is.”

The major point of contention between the judges revolved over the interpretation of a 1979 Supreme Court decision, Smith v. Maryland, in which the court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone. “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” Judge Pauley wrote.

Judge Leon said, however, that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling. The fact that the government is now able to put together a mosaic of information from countless records, he said, requires a new analysis of how to apply the Fourth Amendment’s prohibition of unreasonable government searches.

Judge Pauley disagreed. “The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search,” he wrote.

He acknowledged that “five justices appeared to be grappling with how the Fourth Amendment applies to technological advances” in a pair of 2012 concurrences in United States v. Jones. In that decision, the court unanimously rejected the use of a GPS device to track the movements of a drug suspect over a month. The majority said that attaching the device violated the defendant’s property rights.

In one of the concurrences, Justice Sonia Sotomayor wrote that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

The presidential review group said statements like those by Justice Sotomayor raised questions about whether the 1979 decision was “still good law.” The review body said, however, that its job was “not to interpret the Fourth Amendment, but to make recommendations about sound public policy.”

Judge Pauley also said it was not for him to say I which direction the interpretation of the law was heading, but for a different reason. “The Supreme Court,” he said, “has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases.”

As for changes in technology, Judge Pauley wrote, customers’ “relationship with their telecommunications providers has not changed” since 1979 “and is just as frustrating.”