A federal judge on Friday ruled that the National Security Agency’s (NSA) collection of records on virtually all U.S. phone calls is legal.
Judge William Pauley of the U.S. District Court for the Southern District of New York found the program is needed to combat terrorism and moved to dismiss a lawsuit brought by the American Civil Liberties Union (ACLU).
"The question for this court is whether the Government’s bulk telephony metadata program is lawful. The court finds that it is,” Pauley wrote.
Pauley reaffirmed a Supreme Court ruling from 1979 that says the Fourth Amendment does not protect the records because the caller is voluntarily ceding the information to a telephone company.
"The right to be free from searches and seizure is not absolute," Pauley wrote. "As Justice Jackson famously observed, 'the bill of rights is not a suicide pact.' "
He noted in his opinion that the metadata program wasn’t in place before the terrorist attacks of 2001, and said the records now collected by the NSA might have helped officials stop al Qaeda.
"Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely," he wrote. "The bulk telephony metadata collection program represents the government's counterpunch."
The judge also dismissed concerns about the misuse of NSA records, arguing it has mostly been inadvertent.
"While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped.”
The ACLU criticized the ruling and vowed to appeal.
“We are extremely disappointed with this decision, which 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relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, the ACLU's deputy legal director.
The Justice Department, which urged the dismissal of the suit, praised the decision.
“We are pleased the court found the NSA's bulk telephony metadata collection program to be lawful,” said Justice Department spokesman Peter Carr.
The decision comes on the heels of an opposite finding from a federal judge in Washington, D.C., who this month found the NSA program is likely unconstitutional. The central difference was that the judge in Washington said technology had evolved enough that the 1979 case did not protect the government’s claims.
The challenges to the NSA’s activities are likely to eventually reach the Supreme Court.
But if the courts do not end the phone metadata program, it’s possible that Congress will.
Sen. Patrick Leahy (D-Vt.), the chairman of the Senate Judiciary Committee, and Rep. Jim Sensenbrenner (R-Wis.), the original author of the Patriot Act, introduced the USA Freedom Act in October. The legislation would end the collection of metadata on virtually all calls and impose stricter requirements that must be met before data can be collected.
The bill has 19 co-sponsors in the Senate and 117 in the House, with supporters evenly divided between the parties.
President Obama is also considering changes to the NSA. Before heading off to Hawaii for his holiday vacation, Obama received the recommendations of a panel he set up specifically to review U.S. surveillance policies. Among their suggestions was that the call data be kept with the phone companies or a third party, instead of by the government, and that it be available only under court order.
Obama said he will make a statement on the reform panel’s recommendations in January, and indicated in his year-end press conference that the phone metadata program could be in for some changes.
“The question we're going to have to ask is, can we accomplish the same goals that this program is intended to accomplish in ways that give the public more confidence that in fact the NSA is doing what it's supposed to be doing,” Obama said. “[W]e may have to refine this further to give people more confidence. And I'm going to be working very hard on doing that.”
The ACLU noted the recommendations of Obama’s reform panel as it promised to fight on in the courts.
“As another federal judge and the president’s own review group concluded last week, the National Security Agency’s bulk collection of telephony data constitutes a serious invasion of Americans’ privacy,” Jaffer said. “We intend to appeal and look forward to making our case in the Second Circuit.”
— This story was updated at 1:31 p.m. and 2:35 p.m.