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Federal Judge Says NSA Telephone Data Collecton is Lawful and Necessary

Federal Judge Says NSA Telephone Data Collecton is Lawful and Necessary

In 2008, the ACLU, on behalf of Amnesty International and several other groups, sued the U.S. government after learning of its warrantless wiretapping program, claiming their civil and constitutional rights violations. The case went all the way to the Supreme Court, which threw out the case in February 2013 on grounds that they lacked standing because there had been no proof that the government had specifically targeted them.

Then Edward Snowden arrived on the scene.

On June 5, 2013, the Guardian published a Foreign Intelligence Surveillance Court (FISC) order from the National Security Agency directing Verizon Business Network Services to provide daily records for a three month period of the “telephony metadata” for all telephone calls on its network. The order was part of thousands of documents stolen by Snowden while employed by a NSA contractor. In the months that followed, the government acknowledged it had been receiving this kind of data since at least 2006.

The meta-data included the numbers that made and received calls, and the date, time and duration of the call. The ACLU – and millions of other Verizon customers – now had proof they had been directly affected by the government’s surveillance program.

Several lawsuits were filed, with plaintiffs claiming violation of civil and constitutional rights by the government. On December 16, U.S. District Court Judge Richard Leon ruled that Verizon customer and former U.S. Department of Justice lawyer Larry Klayman, demonstrated a substantial likelihood of success of proving that his Fourth Amendment rights (protections against unlawful search and seizure) had been violated and would suffer irreparable harm without relief.

He did not rule that it was unconstitutional but that it was likely it would be proven so. He put a stay on the injunction against the program while the government appeals.

Eleven days later a ruling was entered on the Government’s motion to dismiss the new case brought by ACLU and several others, which was filed just days after the Guardian article. The plaintiffs also argued violation of Fourth Amendment rights and sought an injunction against the continuation of the surveillance. This time, New York U.S. District Judge William H. Paley ruled their claims did not have merit and that not only was the program lawful, but a necessary tool in protecting the nation’s security, granting the Government’s motion for dismissal.

Judge Paley agreed that as Verizon customers, the plaintiffs had standing — meaning they were directly affected by the government’s action — which was an issue that plagued their previous lawsuit. The published FISC order, and the government’s admission, proved that the plaintiffs’ numbers were included in the government’s surveillance.

Even though they had standing, however, it didn’t mean that their claims had any merit.

The ACLU alleged that Section 215 of the Patriot Act, which allows the telephony metadata collection, is in violation of another law, the Stored Communications Act (SCA). This law prohibits telecommunications companies from revealing subscriber data to the government without a warrant or other legal authorization (i.e.,  grand jury subpoena), and certification from the FBI Director. Paley states that there is nothing in Section 215 that violates the Stored Communications Act and, in fact, the legal requirements under the section work in concert with the SCA.

Interestingly, the Stored Communications Act and Section 215 were passed on the same day.

While previous rulings have indicated that customers have no legitimate expectation of privacy regarding the numbers they dial, the ACLU argued that the government’s data mining of these numbers can lead to seizure of personal information that is private, in violation of subscriber’s Fourth Amendment rights. Judge Paley found this claim unsubstantiated. He cited procedures in place to limit when, how and by whom the data is accessed. Furthermore there is no identifying information about the parties involved in the calls at the time of collection.

There was no evidence the data was used for anything other than its intended purpose of investigation of potential terrorist attacks. Furthermore, his ruling states, people willingly give up personal information daily to corporations for profit without a second thought – information that goes far beyond anything collected in the bulk telephone metdata.

To assume that a lawful collection of the data with specific safeguards in place would lead to a massive violation of Fourth Amendment rights is “irrelevant conjecture,” Paley rules.

He agreed with government’s assertion that there are no violations of the First Amendment. Plaintiffs alleged harm to their organizations’ work because contacts would stop talking to them out of fear of being caught up in a government investigation. Paley ruled this as a speculative and unsubstantiated argument.

As for the injunction against the government from collecting the plaintiffs’ phone records. Paley points out the records don’t belong to the plaintiffs. Verizon is the one who is collecting the data and maintaining the records – which they own. The government is not collecting anything that belongs to the plaintiffs.

Which brings us to an important point from Judge Paley: Even if there were merits to the plaintiffs’ claims, they still don’t have the right to challenge the data collection.

The targets of investigation never know they are the subject of the inquiry, an act of secrecy supported by precedent and necessity. Even if they did find out, Congress specifically tailored the law so that that only the recipient of any request to provide records has a right to challenge the request. The request goes to the company, not the target. With this in mind, Paley points out that the ACLU only discovered the records were being requested after the classified information was obtained illegally by Snowden. If they don’t have a right to challenge when the information is done so in accordance with the law, they certainly don’t have the right when they find out through spurious means.

Kind of like evidence seized without a search warrant.

There is nothing in the act that prevents bringing claims of constitutional rights violations, but, as stated before, Judge Paley ruled that the plaintiffs’ have not substantiated those claims (a requirement for the case to go forward).

Nevertheless, Paley acknowledges the need to revisit the law. He writes: “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. This Court finds that it is. But the question for whether the program should be conducted is for the other two coordinate branches of Government to decide.”

He continues, “This case shows how FISC decisions may affect every American – and, perhaps, their interests should have a voice.”

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56 comments

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3:56PM PST on Jan 2, 2014

Judge Paley is a liar, who clearly is paid off. For anyone to suggest that our personal phone records are the governments property, and they can listen in without a warrant, anytime they want is insane. If the NSA, FBI, or any law enforcement agency suspects someone might be a terrorist, then they can get a warrant, and listen in. Otherwise, this is an invasion of privacy, to simply treat all Americans like they are criminals.

7:54PM PST on Jan 1, 2014

We fought other countries for doing this crap, we now have BIG BROTHER, one judge says it is wrong then another judge says it is alright so the judge that must been bought off ruled it was ok.
The NSA and the rest of our looser goverment leaders suck

4:26PM PST on Jan 1, 2014

CONTINUED: What is the risk of an American dying in a terrorist attack? A very liberal estimate (an estimate assuming death to be more likely) would be 1 in 1.7 million. Taking these figures into account, a rough calculation suggests that in the last five years, your chances of being killed by a terrorist are about one in 20 million. This compares annual risk of dying in a car accident of 1 in 19,000; drowning in a bathtub at 1 in 800,000; dying in a building fire at 1 in 99,000; or being struck by lightning at 1 in 5,500,000. In other words, in the last five years you were four times more likely to be struck by lightning than killed by a terrorist. (Source: dangerousintersection.org) I would rather face the extremely low % chance of being subjected to terrorism than have my government watching, spying and treating me like I am a suspect that is possibly dangerous. It irks me when I see irresponsible people willing to surrender MY Rights because they are cowards.

4:23PM PST on Jan 1, 2014

janice b.: You ask "Why don't we just let the NSA alone to do the job they've been doing since 911 --2001 to keep us safe ?" Our Founding Fathers knew exactly what it was like to be under a government that has too much power and control over the people. Like a child who gets burned because he is not aware of the dangers of a stove top, citizens in this country put far too much trust and power into out Government. The bottom line is what the NSA is doing is illegal and unconstitutional despite what any judge rules. And the spying does NOT make us safer. Perhaps you have no problem with the hand of the government up your backside, waiting to pounce on any slight 'evidence' that you MAY be dangerous, but there are millions of other people in this country. And we claim ownership of our Government and our Constitution. According to government statistics, roughly as many Americans are killed annually by unstable furniture and falling televisions as are killed in terrorist attacks.

What else is more dangerous than a terrorist attack?

16 oz. sodas, inconvenience of going through TSA security at an airport (which discourages many

Image by anyunoff at Dreamstime (with permission)

people from flying, causing them to die on the highways), use of your bathroom, texting, autoerotic asphyxia, alcohol and tobacco, weather, suicide, hospital infections and doctor errors and stress.
What is the risk of an American dying in a terrorist attack? A very liberal estimate (an

3:58PM PST on Jan 1, 2014

Judges have bills too. They can be bought and usually are.

3:54PM PST on Jan 1, 2014

We have no choice but to trust people. We trust them with our food sources, when we do banking and they have all our info. Why don't we just let the NSA alone to do the job they've been doing since 911 --2001 to keep us safe ? Why do some people think they know better than the ones who are working with our security who also want to live safely, want their families to be safe.
The only one doing harm is Snowden because he took an oath and thumbed his nose at the USA which cost us great harm and around 21 million dollars of equipment and procedures that had to be destroyed. If we have an attack now blame Snowden....we cannot afford whistleblower like him.

3:23PM PST on Jan 1, 2014

Judges and politicians playing God. We need decentralized grassroots democracy. If we can bank online, we can vote safely online.

3:08PM PST on Jan 1, 2014

"To assume that a lawful collection of the data with specific safeguards in place would lead to a massive violation of Fourth Amendment rights is “irrelevant conjecture,” Paley rules."
That's not a rational basis for a ruling. There's no reasoning or logical explanation in this statement. It justifies nothing. This is a biased and personal ruling. And, the "lawful" part is based on technicality, not on justice or the intention or spirit of the law---4th Amendment.

3:00PM PST on Jan 1, 2014

I wish I was surprised that so many people are blaming Obama for this program. The misinformation and ignorance out there is as big a threat to our freedom as the spying is. The program was started in 2001, before Obama was even in the Senate.

1:24PM PST on Jan 1, 2014

The judge is bought, or a fool...No real judge would hold up and stop the rights of the people given in the laws of our lands. Anyone wanting the 'safety' of draconian laws is slave material.

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