U.S. District Judge William Pauley of New York, a Clinton appointee, has ruled (PDF) that the bulk-collection of metadata by the NSA and the phone companies is Constitutional. He called it a "vital tool" for fighting terrorism, and pooh-poohed claims that it was invasive, in part because people "voluntarily" give their data to large corporations. The suit was brought by the ACLU, and was dismissed by Pauley at government request. The ACLU will appeal.
Earlier this month, a different federal judge ruled that NSA spying was illegal. It was likely from the start that that case would go to the Supreme Court, but that likelihood just shot up now that there's a circuit split brewing among the federal courts.
Judge Pauley's ruling advanced the theory that mass spying detects "relationships so attenuated and ephemeral they would otherwise escape notice," though there's no evidence that this "attenuated relationship detection" leads to any useful counterterrorism -- and there's an abundance of evidence that it generates thousands and thousands of false positives: people judged guilty by a secret and unaccountable algorithm.
Pauley has subscribed to the NSA's Greater Manure Pile theory of crimefighting ("If the pile of manure is big enough, there must be a pony underneath it somewhere!"). The fact that the evidence in support of the Greater Manure Pile is secret means that its advocates can simply wink and lay their fingers alongside their noses and say "If you only knew what I knew..." and then ask for another billion dollars for their own surveillance empires.
Both rulings -- in support of, and against NSA spying -- cite Smith v. Maryland, a Supreme Court case that held that spying on one person's phone-metadata for a limited time was legal in order to catch a purse-snatcher. A secret interpretation of Smith was used by the Obama administration and the NSA to justify harvesting all phone metadata, of all people, all the time. Judge Pauley agreed that this was a reasonable interpretation. The ACLU disagreed: "[The decision] 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relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections."
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. as the September attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed al-Qaeda 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-Qaeda’s terror network.
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