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Now a split decision on NSA data mining

Now a split decision on NSA data mining

We reported last week on how Judge Leon in the District of Columbia ruled against the government, preliminarily, on NSA mass data surveillance. I cautioned against the media assumption that the ruling would survive:

The judge issued a preliminary injunction, but stayed his decision pending appeal. While many people are taking the decision as obvious, in fact the Judge had to weave his way around Supreme Court precedent and other court decisions to the contrary. Celebrations that the decision will hold up are premature.

Now a Judge in New York has ruled the opposite way.

As before, because I am so busy on other things, I’ll have to defer to Prof. Orin Kerr, writing at Volokh Conspiracy, for a summary:

The opinion is here, and it’s pretty much the opposite of Judge Leon’s recent opinion. Judge Pauley rules that the Section 215 telephony metadata program is lawful both as a matter of statutory and constitutional law. Based on our experience with lower court rulings on Obamacare, I gather that Pauley’s opinion will draw only a small amount of attention relative to Judge Leon’s contrary ruling. But it’s an interesting contrast, both on the legal merits and as a matter of judicial rhetoric.

Politico has more:

Citing the Sept. 11 attacks, a federal judge on Friday found that the National Security Agency’s bulk collection of millions of Americans’ telephone records is legal, a valuable part of the nation’s arsenal to counter the threat of terrorism and “only works because it collects everything.”

U.S. District Judge William Pauley said in a written opinion that the program lets the government connect fragmented and fleeting communications and “represents the government’s counter-punch” to the al-Qaida’s terror network’s use of technology to operate decentralized and plot international terrorist attacks remotely.

“This blunt tool only works because it collects everything,” Pauley said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”


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I have a little pocket edition of the Constitution … going through it now to see where is mentioned ‘government counter-punch’.

So.. if the NSA program only works because it collects all information, it passes constitutional muster?

What in the hell am I missing here?

    Archer in reply to Sanddog. | December 27, 2013 at 8:00 pm

    Pretty much. Apparently, the new precedent is that it must be Constitutional because it’s unprecedented.

    It’s the “Underpants Gnomes” logic trail:

    1. Create a blanket dragnet of unprecedented proportions that violates the spirit and letter of the Constitution in general and the 4th and 5th Amendments specifically.
    2. ???
    3. Constitutional Precedent!

    Yeah, I don’t understand that one either.

“This blunt tool only works because it collects everything,” Pauley said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”

No. The scope is both unprecendented and illegal. The NSA is not to be omniscient and omnipotent.

Justice Roberts will decide that it can be interpreted as part of your FCC fee tax.

Leon was being unduly creative in dismissing Smith v Maryland because the extent of technological advances means there is far more data and it is far easier to collect and sort than it was 35 years ago. What precise legal principle allows him to do this?

You do not have to approve of the NSA collection of meta data to conclude it doesn’t breach the 4th Amendment. All the key points in the precedent are unchanged: where is the “expectation of privacy” in data that is not owned by you and is based on what you have knowingly provided a third party?

The questions of where, how, and from whom NSA should collect data, and how it should be used are political questions which properly belong to the Congress and the ballot box for resolution. The Courts should not intervene.

    Sanddog in reply to Estragon. | December 27, 2013 at 7:06 pm

    Just because you give a third party permission to track your phone usage does not in any way mean you’ve given the government permission to take that data. Period. The 4th doesn’t protect us from AT&T or Verizon, it protects us from the Federal government.

Pauley Shore is a judge?

If this ever gets before the Supremes we all know how Roberts will vote: Exactly as Obama decrees