Judge Pauley: Metadata Collection Is Constitutional

On Dec. 27, 2013, U. S. District Court Judge William H. Pauley III issued his opinion in ACLU v. Clapper, in which he upheld the constitutionality of the NSA's collection of metadata of "virtually every telephone call to, from or within the United States."

His opinion runs directly contrary to Judge Richard Leon's opinion, which I discussed in Sunday's op-ed.

Judge Pauley first finds that the NSA's collection of breathtaking amounts of metadata does not amount to a search because a search occurs only when the government looks into an area where the individual has a "reasonable expectation of privacy."

"In Smith v. Maryland, the Supreme Court held individuals have no 'legitimate expectation of privacy' regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number. Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties."

Judge Pauley then sets out what he considered the fatal flaws in the ACLU's arguments.

"The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ...

"First, the business records created by Verizon are not 'plaintiffs' call records.' Those records are created and maintained by the telecommunications provider, not the ACLU.

"Second, the Government's subsequent querying of the ... metadata does not implicate the Fourth Amendment -- any more than a law enforcement officer's query of the FBI's fingerprint or DNA databases to identify someone.

"The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."

Judge Pauley then proceeded to discuss the presidents' "executive" power, when the president acts in national security matters pursuant to congressional authorization.

"The Constitution vests the President with Executive Power ... That power reaches its zenith when wielded to protect national security."

Then citing Justice Robert Jackson's highly regarded concurring opinion in Youngstown Sheet &Tube Co., Judge Pauley wrote, "When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion ... rests heavily upon any who might attack it. ... And courts must pay proper deference to the Executive in assessing the threats that face the nation."

Judge Pauley then explained why such deference is accorded. "Most federal judges do not begin the day with briefings that may describe new and serious threats to our Nation and its people. Any injunction dismantling the section 215 telephony metadata collection program would cause an increased risk to national security and the safety of the American public."

Then, Judge Pauley found that "The effectiveness of bulk ... metadata collection cannot be seriously disputed." By way of contrast, Judge Leon had found that "the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature."

Judge Pauley explains that failure away: "Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies."

Starting from his finding that the NSA metadata collection program did not amount to a "search," allowed Judge Pauley to focus instead on "national security concerns."

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as 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. 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 reconstruct and eliminate al-Qaeda's terror network."

But in his conclusion, Judge Pauley hedges his bets. Having written earlier that the NSA's collection of metadata was not a search, he concludes by saying that if it was a search, that it was a "reasonable exception" to the 4th Amendment's warrant requirement.

"The right to be free from searches and seizures is fundamental, but not absolute. ... The Bill of Rights is not a suicide-pact. ... Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. The ultimate touchstone of the Fourth Amendment is 'reasonableness.'"

The program, although sweeping, is "reasonable" in his view because it does what it is designed to do.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice."

He buttresses his finding that the program is "reasonable," writing, "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."

And the program is "reasonable" because "The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court."

Posted Online: Jan. 13, 2014, 12:00 am - Quad-Cities Online
by John Donald O'Shea

Copyright 2014
John Donald O'Shea