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New York Times
December 29, 2013
Has the National Security Agency’s mass collection of Americans’ phone records actually helped to prevent terrorist attacks?
No, according to the 300-page report issued this month by a panel of legal and intelligence experts appointed by President Obama.
Yet in a ruling issued on Friday, Judge William Pauley III of the Federal District Court in Manhattan came to the opposite conclusion. “The effectiveness of bulk telephony metadata collection cannot be seriously disputed,” Judge Pauley wrote in a deeply troubling decision dismissing a lawsuit by the American Civil Liberties Union that challenged the constitutionality of the N.S.A.’s bulk data collection program.
The ruling, which repeatedly defers to the government’s benign characterization of its own surveillance programs, demonstrates once more the importance of fixing the law at its source, rather than waiting for further interpretations by higher courts.
Judge Pauley’s opinion largely disregards the concerns central to the presidential panel’s report and the ruling on Dec. 16 by a federal district judge in Washington, Richard Leon, who found that the agency’s program was “significantly likely” to be unconstitutional.
The government’s claim that the program is constitutional rests on a 1979 Supreme Court case, Smith v. Maryland, which held that a robbery suspect had no expectation of privacy — and no Fourth Amendment protection — in the telephone numbers he dialed. Judge Leon found the Smith decision to be inapplicable to a daily, indiscriminate sweep of hundreds of millions of phone records. Judge Pauley, however, said its logic still applied.
