Ask anyone on the street whether the National Security Agency (NSA) surveillance program that performed bulk monitoring of telephone metadata is legal and constitutional, and you’re likely to get a lot of different answers. This isn’t surprising: It’s a complex situation that combines Fourth Amendment prohibitions against overzealous searches and seizures with more recently broadened government surveillance rights such as the U.S. Patriot Act, and it all gets a little confusing.
Even the courts can’t agree, apparently. This offers a clue that the issue is likely to reach the Supreme Court sometime in the future.
In mid-December, a U.S. district court for the District of Columbia, Judge Richard Leon, ruled that the NSA’s collection of metadata was probably unconstitutional in its violation of the Fourth Amendment, and added an editorial opinion that the program was “almost Orwellian.” It was a serious blow to the Obama administration, which maintains that the program is necessary for the preservation of national security.
But that was then, and this is now.
Last week, a district court in New York found that the practice of collecting bulk telephone data does not violate the Constitution. The judge, William Pauley, found in favor of defendant Director of National Intelligence James Clapper and against the American Civil Liberties Union, which filed the lawsuit. Judge Pauley determined that although the National Security Agency "vacuums up information about virtually every telephone call to, from, or within the United States, "there is no evidence that the agency abuses the information it collects by spying on individuals who do not have ties to terrorist organizations,” Reuters reported.
“There is no evidence that the government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” wrote the judge in his ruling, noting that the tactics of today’s terror operatives require a heavy-handed approach.
“As the September 11 attacks demonstrate, the cost of missing such a threat can be horrific,” ruled Judge Pauley, who was appointed to the bench by President Bill Clinton. “Technology allowed al-Qaida to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaida's terror network.”
After the ruling was handed down, the ACLU expressed that it was “extremely disappointed,” and intended to appeal the ruling. Most legal scholars expect that the case will ultimately reach the U.S. Supreme Court.
Edited by Blaise McNamee