New judge, new ruling on spying

WASHINGTON —  The National Security Agency mass collection of telephone data does not violate the Constitution, a federal judge in New York has ruled, creating a conflict within the federal courts and increasing the likelihood that the Supreme Court eventually will have to resolve the program’s fate.

The decision Friday by U.S. District Judge William H. Pauley will bolster the position of the NSA and its allies just as President Obama is considering whether to impose new restrictions on the spy agency’s activities.

Pauley called the NSA’s surveillance programs part of “the government’s counterpunch” against the Sept. 11, 2001, attacks, which he said happened in part because of a failure to “connect the dots” linking terrorists.

“The government learned from its mistake and adapted to confront a new enemy, a terror network capable of orchestrating attacks across the world,” he wrote.

At issue is the NSA’s collection of “metadata” -- information such as which numbers are called from other numbers and how long the calls last -- from virtually all telephone calls made within or from the U.S.

Although that data collection is vast, Pauley said, a previous Supreme Court ruling has made clear that the 4th Amendment does not protect information that a person turns over to someone else, including a telephone company.

“When a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information,” Pauley wrote.

Less than two weeks ago, the NSA’s critics celebrated a victory in federal court as a district judge in Washington, D.C., ruled that the wholesale collection of metadata did violate the Constitution’s ban on unreasonable searches.

Both rulings are certain to be appealed -- the Washington decision to the D.C. Circuit Court of Appeals and Pauley’s to the New York-based 2nd Circuit. Ultimately, whichever side loses in the appeals courts probably will ask the Supreme Court to rule on the issue.

In the meantime, as the president ponders whether to adopt any of the 46 changes in the NSA’s programs recommended by a review panel he appointed, the two rulings will give him and other participants in the debate two sharply contrasting judicial assessments of how to balance privacy rights with security concerns.

The two rulings are “like night and day,” said Jonathan Hafetz, a law professor at Seton Hall University in New Jersey.

Pauley, a onetime Republican official in New York who was appointed to the federal bench by President Clinton, suggested in his ruling that the deaths on Sept. 11 might have been prevented had mass collection of telephone data been in place at the time.

By contrast, District Court Judge Richard J. Leon, who was appointed by President George W. Bush, had questioned the utility of the NSA’s data collection program, saying that “the government does not cite a single instance in which analysis of the NSA’s bulk data collection actually stopped an imminent attack.”

Leon described the NSA’s collection of telephone data as an “indiscriminate and arbitrary invasion” of the 4th Amendment’s protection from unreasonable searches. He called the NSA’s vast database of telephone call records an almost “Orwellian technology.”

Pauley, by contrast, said the NSA’s collection did not violate any constitutional rights. He relied on a 1979 Supreme Court precedent -- one that Leon had brushed aside as outdated -- for his ruling that the 4th Amendment does not protect the information at issue.

The huge scale of the NSA’s activities does not change the legal analysis, Pauley said.

“The collection of breathtaking amounts of information unprotected by the 4th Amendment does not transform that sweep into a 4th Amendment” violation, he wrote.

“No doubt,” he said, the “program vacuums up information about virtually every telephone call to, from or within the United States.”

But by doing so, “it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the Sept. 11 attacks demonstrate, the cost of missing such a thread can be horrific,” he said.

John Yoo, a UC Berkeley law professor and an official in the Justice Department under Bush, said Pauley had followed the Supreme Court’s previous rulings about what sorts of information the 4th Amendment protects.

By contrast, “Judge Leon tried to escape” what the high court had previously ruled, Yoo said in an email. “It is up to the Supreme Court, not a trial judge, to decide whether to overrule” its previous case, he said.

“The conflicting decisions,” he added, “seem guaranteed to send the issue to the Supreme Court for the last word” unless the D.C. Circuit overrules Leon’s decision.

Hafetz, a former American Civil Liberties Union lawyer, said the two rulings stemmed from very different views of what the 4th Amendment’s ban on unreasonable searches means in the modern era.

“Judge Pauley has a much more conservative view on the 4th Amendment, where Judge Leon is more willing to recognize how rapidly changing technology requires rethinking how to interpret the 4th Amendment,” he said.

Leon based much of his decision on the argument that rapid changes in technology require judges to rethink previous ideas about the power of law enforcement to obtain information.

Pauley disagreed. Americans’ relationship with their mobile telephones may have changed, he wrote, but customers’ “relationship with their telecommunications providers has not changed and is just as frustrating.”

“Every day, people voluntarily surrender personal and seemingly private information to transnational corporations, which exploit that data for profit,” Pauley said. “Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.”

The federal courts probably would not be reaching the constitutional issues at all but for the disclosures last summer by former NSA contractor Edward Snowden. Before Snowden revealed that the NSA had collected everyone’s telephone data, judges had been dismissing legal challenges to government surveillance on the grounds that individuals could not prove they were directly affected.

Snowden has publicly said he acted because he saw the NSA’s activities as a threat to Americans’ liberties, but Pauley defended the activities as carefully executed and limited.

“There is no evidence that the government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” he wrote. “While there have been unintentional violations of the guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”

Justice Department spokesman Peter Carr said in a statement that officials were pleased that the ruling found the NSA’s programs lawful.

The ACLU, which brought the case, issued a statement expressing disappointment and promising to appeal.

The decision “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,” said Jameel Jaffer, ACLU deputy legal director.

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tim.phelps@latimes.com.