Southern District Judge Backs Collection of Phone Data

, New York Law Journal


NSA campus
National Security Administration (NSA) campus in Fort Meade, Md.

The National Security Agency's practice of collecting information about all telephone calls placed in, to and from the United States is lawful despite the potential civil liberties abuses inherent in such a "metadata" bank, a federal judge in Manhattan ruled Friday.

Southern District Judge William Pauley III (See Profile) concluded in American Civil Liberties Union v. Clapper, 13 Civ. 3994, that the NSA's telephony metadata program is reasonable under the Fourth Amendment, given the "horrific" consequences of international terrorism as demonstrated on Sept. 11, 2001.

"Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network."

He conceded that "if un-checked," the program "imperils the civil liberties of every citizen."

But he said it is subject to "extensive" oversight by the U.S. Department of Justice, the intelligence community, the Foreign Intelligence Surveillance Court and Congress.

Pauley wrote that abuses of the database have been "unintentional" and corrected by federal officials once the abuses have been discovered. The judge also observed that Americans voluntarily surrender "far more intrusive" personal information every day to vendors online and over the telephone than they reveal to the metadata collection system by placing or receiving calls.

Pauley said that had the telephony metadata system been in place in 2001, it might have intercepted seven calls made by hijacker Khalid al-Mihdhar and allowed the FBI and other security agencies to make sense of disparate pieces of intelligence information and foil the Sept. 11 hijackings.

The judge granted the federal government's motion to dismiss the challenge to the data collection system. He also dismissed the ACLU's motion for a preliminary injunction to halt the NSA's collection of data. (See also the ACLU's response to the motion to dismiss and the government's response to the motion for a preliminary injunction.)

The ACLU, the ACLU Foundation, the New York Civil Liberties Union and the NYCLU's Foundation brought the suit. It named as defendants James Clapper, director of national intelligence and four other high-ranking federal officials as defendants, including U.S. Attorney General Eric Holder and FBI Director James Comey.

The ACLU said Friday it would appeal Pauley's ruling to the U.S. Court of Appeals for the Second Circuit.

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