Two opposite court judgements have been handed down regarding the NSA surveillance program in 10 days by two US district judges in two states.
On December 27, US District Judge William Pauley in New York ruled in ACLU v. James R. Clapper that the NSA’s metadata program is lawful under Section 215 of the Patriot Act. The ACLU sought a preliminary injunction against the Government’s program, but this was denied.
On December 16, US District Judge Richard L. Leon in DC ruled in Klayman v. Obama that the NSA program was “likely unconstitutional.” Leon found against the NSA’s metadata program and granted a preliminary injunction, but stayed the ruling to allow for appeals.
James R. Clapper was filed June 11 by the American Civil Liberties Union against the director of National Intelligence, James Clapper. Days earlier, Edward Snowden’s leaks were published by Britain’s Guardian newspaper, revealing the NSA’s telephone data collection program, which records in dragnet the numbers and duration of calls Americans dial, but not the content of those calls.
Pauley cited several reasons for his decision.
Pauly framed the NSA program within a group of counter-measures the government had effected in order to combat the threat posed by a new enemy: terror networks. The September 11 terrorist attacks, Pauly reasoned, might have been prevented if the metadata program had been in place at that time.
Pauly stated that the “blunt tool”–the metadata program–works only because it collects everything.
Pauly found that, putting aside the public and government discussion and litigation taking place in the wake of the unauthorized disclosures of Edward Snowden, the question Pauly was tasked to deal with in James R. Clapper was specifically whether the bulk telephony program is lawful. Pauly found that it was lawful, but noted explicitly that “the question of whether that program should be conducted is for the other two coordinate branches of Government to decide,” referring to the legislative and executive branches of government.
Pauly concluded by quoting Justice Jackson: “the Bill of Rights is not a suicide-pact,” observing that the Forth Amendment right against search and seizure is “fundamental, but not absolute.” Pauly framed the question of government surveillance in terms of reasonableness. Pauly cited the voluntary giving of information more personal than telephony metadata by most Americans to various trans-national corporations. There was no evidence that the government had used any of its collected data for any purpose other than investigating terrorist attacks – violations, Pauly said, stemmed from human error and the complex nature of the information tool – and that the metadata program was subject to responsible oversight and monitoring. Pauly reiterated his concern over the “cost of missing such a [useful piece of information against a terrorist plan]” that could be horrific, referring to the 9/11 attacks.
Pauley dismissed the ACLU’s complaint and denied the ACLU’s motion for injunction.
The ACLU commented after Pauley’s decision, complaining that the decision misinterpreted relevant statutes and understated the privacy implications of the NSA program. The ACLU also complained that Pauley’s ruling relied on and misapplied the precedent of Smith v. Maryland (1979), which is the precedent referred to in cases where third-party disclosures are at issue.
Smith v. Maryland continued a tradition in U.S. law that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” In Smith, the Supreme Court found that no warrant is required to obtain information from phone companies for metadata those companies hold as business records. FISA has also upheld this ruling in secret, one-sided courts conducted since 2006.
Klayman v. Obama, ruled on by Judge Leon on December 16, had an opposite result. Leon called the NSA program “almost Orwellian” and said that the program probably violated the Fourth Amendment. Leon observed that James Madison would be “aghast” at the program.
Leon stated that the government had not shown any case where the program actually stopped an immanent terrorist attack. This function is the primary rationale for the program that Leon found to probably infringe on Americans’ constitutional rights.
Leon noted Smith v. Maryland, but found that the meaning of telephone use had changed substantially since the 1979 case–beyond what could even be conceived at that date–and so should not be relied on in the trial.
Leon warned the government that he was providing six months for the government to prepare for eventual defeat if the appeals Leon expected the government to make did not succeed.
Klayman was brought by a conservative lawyer, Larry Klayman and the father of a soldier killed in 2011 in Afghanistan, Charles Strange.
Law Professor at George Washington University, Orin Kerr, commented on the two rulings, calling them “dream rulings” for each interested party respectively, “Point and counterpoint” of the issue. Kerr explained that both opinions were material for the appeals courts to take up.
President Obama has voiced his intention to state publicly in January what reforms to the NSA program he supports. Obama’s personally appointed review panel recommended last week that the NSA should conduct significant reforms and no longer store the metadata in question.
From here, the losing parties of the two trials on NSA surveillance will proceed to appeals courts; the ACLU said that it intended to appeal James R. Clapper and the government is expected to appeal Klayman in the upcoming months.
By Day Blakely Donaldson