Federal judge dismisses ACLU’s lawsuit to halt NSA’s phone surveillance program
A federal judge in New York has tossed out the American Civil Liberties Union’s lawsuit challenging the constitutionality of the National Security Agency’s bulk telephone metadata collection program.
Judge William H. Pauley III of the U.S. District Court in the Southern District of New York ruled on Dec. 27th that the NSA’s telephone metadata program conducted under Section 215 of the USA Patriot Act is lawful because it has “rigorous minimization” safeguards in place to protect privacy and has been effective in preventing potential terrorist attacks.
“The right to be free from searches and seizures is fundamental, but not absolute. There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purposes other than investigating and disrupting terrorist attacks,” Pauley wrote in ACLU v. Clapper. “The balance of the equities and the public interest tilt firmly in favor of the Government’s position.”
The ACLU has filed an appeal with the Second Circuit court.
“We believe that the NSA’s call-tracking program violates both statutory law and the Constitution, and we looking to making our case in the appeals court,” said Jameel Jaffer, ACLU’s Deputy Legal Director. “The government has a legitimate interest in tracking the associations of suspected terrors, but tracking those associations does not require the government to subject every citizen to permanent surveillance. Further, as the President’s own review panel recently observed, there’s no evidence that this dragnet program was essential to preventing any terrorist attack. We categorically reject the notion that the threat of terrorism requires citizens of democratic countries to surrender the freedoms that make democracies worth defending.”
Pauley’s decision was issued 11 days after U.S. District Court Judge ruled in Klayman v. Obama that the NSA’s bulk telephone metadata program “almost certainly” violates the Fourth Amendment, which protects Americans from unreasonable searches and seizures. The conflicting opinions in the ACLU and Klayman cases will likely be settled by the U.S. Supreme Court.
The metadata collected by the NSA include information about when any call was placed or received, the duration of the call, and phone numbers dialed. Under Section 215, the NSA can search for connections up to three “hops” from the original phone number – or “seed” number – authorized for query.
For example, the first “hop” search would include all the phone numbers dialed and received by the original “seed” number. The second “hop” search would encompass the numbers dialed and received by all of the numbers that came into contact with the “seed number”. The third “hop” would expand to all the phone numbers dialed and received by the numbers covered under the second “hop”. So a query on a single “seed” number with 100 numbers dialed and received could easily involve searches of over a million numbers by the third “hop”.
The ACLU argued that the NSA’s phone surveillance program, which collects metadata of nearly every call made and received in the United States since May 2006, is too broad and violates people’s reasonable expectation of privacy guaranteed under the Constitution.
The lawsuit pointed out that although the NSA does not collect the content of the calls, the bulk metadata nonetheless can “reveal a person’s religious, political associations, use of telephone-sex hotline, contemplation of suicide, addiction to gambling or drugs, experience with rape, grappling with sexuality, or support for particular political causes.” Knowing that the government collects – and can analyze – such a wealth of information on every U.S. individual who uses a phone can “chill” Americans’ First Amendment rights to free speech and association.
While Pauley acknowledged that “such a program, if unchecked, imperils the civil liberties of every citizen”, he found that NSA has adequate oversight and minimization procedures in place to safeguard the privacy of Americans.
The minimization procedures require the NSA to have a “reasonable, articulable suspicion” that a specific number recommended for query has ties to international terrorist organizations and that the number searched must be approved by one of 21 authorized NSA officials.
Furthermore, the agency is limited to conduct searches within three “hops” of the “seed” number. The NSA has claimed that “a very small percentage” of phone data collected are ever searched. The agency reported that only 300 numbers were queried in 2012, and 2,900 phone numbers were queried between May 2006 and May 2009.
Pauley dismissed the ACLU’s claim that the bulk data collection program is “too broad and contains too much irrelevant information”, arguing that “this blunt tool only works because it collects everything.”
“By design, it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific,” wrote Pauley. “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.”
Pauley cited the case of Khalid al-Mihdhar, one of the 9/11 hijackers. The NSA had intercepted Al-Mihdhar’s call to Al Qaeda safe house in Yemen but was unable to track Mihdhar’s number to his location in San Diego, Calif.
“Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigations of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,” according to Pauley.
- ACLU.org: ACLU appeals decision upholding NSA’s mass surveillance
- ACLU.org: ACLU v. Clapper – notice of appeal – Jan. 2, 2014 (PDF)
- ACLU.org: ACLU v. Clapper – memorandum & order – Dec. 27, 2013 (PDF)
- WhatTheFolly.com: Federal judge rules NSA bulk data collection is likely unconstitutional
- WhatTheFolly.com: Washington Post: NSA collecting nearly 5 billion cellphone location records per day
- WhatTheFolly.com: NSA whistleblower Edward Snowden seeks “permanent political asylum” in Brazil
Category: Advocacy, Analysis, Civil Liberties, Criminal Justice, Current Events, Feature, Government, Intelligence Community, News, NSA, Technology, U.S. · Tags: 9/11, ACLU, ACLU v. Clapper, Al Qaeda, American Civil Liberties Union, civil liberties, federal court, Foreign Intelligence Surveillance Act, Foreign Intelligence Surveillance Court, Fourth Amendment, Jameel Jaffer, James Clapper, Jim Clapper, Khalid Mihdar, Klayman v. Obama, metadata, national security, National Security Agency, New York, NSA, Patriot Act Section 215, phone records, privacy, Second Circuit Court of Appeals, surveillance, terrorism, terrorist, terrorists, U.S., United States, William H. Pauley III, Yemen