Federal judge: NSA data collection is lawful 'counter-punch' against terror

A federal district judge dismissed on Friday a lawsuit that challenged the government’s massive domestic spying program, including the systematic collection of data from Americans' phone calls, saying it was a lawful “counter-punch” against terrorism.

The ruling, by Judge William Pauley in New York’s Southern District, comes less than two weeks after another federal judge, Richard Leon in the District of Columbia, ruled against the National Security Agency’s program, calling its bulk data collection “almost-Orwellian.”

The conflicting district court rulings illustrate once again the nation’s continuing ambivalence about national security and civil liberties, as well as some of the murky legal issues about privacy in a digital age. Judge Pauley’s decision also comes as President Obama is considering changes to the program, after mounting public concern.

However, both of these decisions must go up to the appellate level before being taken up by the US Supreme Court, legal experts point out.

“Typically, the Supreme Court doesn’t take up an issue unless two circuit courts of appeal are split on an issue,” says Chris Slobogin, director of the criminal justice program at Vanderbilt Law School in Nashville, Tenn. “Only if these different circuits of appeal each adhere to what the trial courts said – then it’s pretty certain that the Supreme Court will see it. But that’s somewhat off in the future.”

Pauley dismissed the case brought by the American Civil Liberties Union, which had argued that the NSA program violated the Constitution, giving the government broad authority to invade Americans’ privacy, including the bulk collection of personal data.

While Pauley said there was a “natural tension” between security and privacy, he expressed ongoing worries about terrorism and Al Qaeda, and he found the NSA data collection could have helped prevent the 9/11 attacks.

“As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific,” Pauley, appointed by former President Bill Clinton, wrote in his 54-page decision. “Technology allowed Al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulky telephone metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network.”

The NSA’s digital spying program became a worldwide sensation after former NSA contractor Edward Snowden exposed the extent of government surveillance, leaking thousands of classified US government documents. These revealed that every day, the NSA vacuums up the data from calls made in the US, entering them into a database and searching for terror suspects.

On Dec. 16, Judge Leon, appointed by President George W. Bush, ruled against the NSA program, saying it violated the constitutional protections against invasion of privacy.

“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, referring to a Supreme Court decision that year dealing with phones and privacy. Bulk data collection and analysis, he added, "almost certainly does violate a reasonable expectation of privacy."

Leon immediately suspended his ruling, however, conceding that “significant national security interests [are] at stake in this case” and citing “the novelty of the constitutional issues.”

Legal experts say his ruling was novel, too. His decision was the first in the country to find the NSA program unconstitutional. Congress and secret rulings by the Foreign Intelligence Surveillance Court have already judged it legal.   

“Leon’s decision was clearly an outlier in terms of constitutional doctrine,” says Mr. Slobogin, who wrote “Privacy at Risk: The New Government Surveillance and the Fourth Amendment.” “So [Friday's ruling] is not a surprising decision.”