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    Update: Federal Judge Rules NSA Phone Surveillance Is Lawful

    Last month, U.S. District Court Judge Richard Leon ruled (archive pdf) in Klayman v. Obama (13-0851) that the National Security Agency surveillance program concerning telephone call data likely violated the Fourth Amendment. Recently, U.S. District Court Judge William H. Pauley III ruled (archive pdf) in ACLU v. Clapper (13 Civ. 3994 (WHP)) that the same program is likely to be constitutional. The New York Times reports on the latest ruling:

    WASHINGTON — A federal judge on Friday ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data.

    In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.

    The latest decision, from Judge William H. Pauley III in New York, could not have been more different from one issued on Dec. 16 by Judge Richard J. Leon in Washington, who ruled that the program was “almost Orwellian” and probably unconstitutional. […]

    The next stops for the parallel cases are the appeals courts in New York and Washington. Should the split endure, the Supreme Court is likely to step in.

    In the meantime, the decisions, along with recommendations issued on Dec. 18 by the presidential review group, illustrate the absence of agreement about the effectiveness and legality of the program, which, Judge Pauley said, “vacuums up information about virtually every telephone call to, from or within the United States.” That information is “metadata” — the phone numbers involved, when calls were made and how long they lasted. […]

    The main dispute between the judges was over how to interpret a 1979 Supreme Court decision, Smith v. Maryland, in which the court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone. “Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” Judge Pauley wrote.

    But Judge Leon said that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling. The government’s ability to construct a mosaic of information from countless records, he said, called for a new analysis of how to apply the Fourth Amendment’s prohibition of unreasonable government searches.

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