The National Security Agency's bulk collection of phone call records is legal, a US judge said, creating a conflict with another judge on a post-9/11 terrorism program that may have to be resolved by the Supreme Court.
The Friday's decision comes less than two weeks after a federal judge in Washington said the NSA programme, disclosed by former agency contractor Edward Snowden, may violate the US Constitution. The two judges came to opposite conclusions about a landmark 1979 ruling that dealt with telephone data in the pre-Internet age.
US District Judge William H Pauley III in Manhattan on Friday granted a motion by the government to dismiss a suit filed in June by several groups led by the American Civil Liberties Union seeking to block the programme.
In the earlier case, US District Judge Richard Leon issued an injunction barring collection of metadata from the Verizon Wireless accounts of the two plaintiffs in the suit. Leon suspended the injunction while the government pursues an expected appeal. "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 program is lawful," Pauley wrote in his opinion. "This court finds it is."
Bulk programme
The NSA receives phone records from US telecommunications companies and stores them in a database that can be queried to determine who is in contact with suspected terrorist organisations. The bulk surveillance program was authorised by President George W Bush after the September 11, 2001, terrorist attacks, and has been defended as "critically important" to national security, according to records declassified this month by National Intelligence Director James Clapper.
The records collected under the NSA programme consist of "metadata," including the numbers used to make and receive calls and their duration. They don't include information about the content of the communications, or the names, addresses or financial information of parties, according to government filings in the Washington case. At least three other cases in federal court are considering the legality of the NSA metadata collection programme.
"We are pleased the court found the NSA's bulk telephony metadata collection program to be lawful," Peter Carr, a spokesman for the US Justice Department, said in an e-mail about Pauley's ruling. The ACLU said it plans to appeal.
'Extremely disappointed'
"We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government's surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections," Jameel Jaffer, ACLU deputy legal director, said in a statement. "As another federal judge and the president's own review group concluded last week, the National Security Agency's bulk collection of telephony data constitutes a serious invasion of Americans' privacy."
At the center of both the New York and Washington court rulings is a 1979 case, Smith v. Maryland, in which the US Supreme Court ruled that police weren't required to obtain a warrant to install a device that recorded the numbers dialed from the home of a robbery suspect, Michael Lee Smith. The court ruled there is no legitimate expectation of privacy in phone numbers that are dialed and communicated to a telephone carrier.
Pauley, who applied the Smith case in ruling against the ACLU, said that the NSA's collection of "breathtaking amounts of information" not protected by the Fourth Amendment to the US Constitution, which bars unreasonable searches and seizures, doesn't turn it into a search falling under the amendment.
