The question of whether the National Security Agency’s massive collection of telephone data is legal is likely heading for the Supreme Court after today’s ruling from a federal judge in New York that it’s constitutional. Last week another judge — in another case — issued a preliminary injunction against the surveillance program.
Here are six key points from the ruling written by U.S. District Judge William Pauley.
You have no expectation of privacy when you make a phone call.
The Supreme Court held individuals have no ‘legitimate expectation of privacy’ regarding the telephone numbers they dial because they knowingly give that information to the telephone companies when they dial the number … an individual has no legitimate expectation of privacy in information provided to third parties.
The record of whom you called isn’t yours to begin with.
The business records created by Verizon are not “Plaintiffs” call records.” Those records are created and maintained by the telecommunications provider, not the ACLU. When a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information.
A lot of members of Congress have no idea the extent to which the administration monitors data. There’s no one to blame for that fact other than Congress.
The House Intelligence Committee did not make the document (a letter explaining the surveillance) available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.
It’s not an unreasonable search under the Fourth Amendment.
The government’s subsequent querying of the telephony metadata does not implicate the Fourth Amendment — anymore than a law enforcement officer’s query of the FBI’s fingerprint or DNA databases to identify someone. In the context of DNA querying, any match is of the DNA profile — and like telephony metadata additional investigative step (sic) are required to link that DNA profile to an individual.
The integration of smartphones in our daily lives does not make them a tool for the government to snoop on our private lives.
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved… While people may have an entirely different relationship with telephones than they did thirty-four years ago, this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephone have far more versatility now… but this case only concerns their use as telephones.
The telephone data has been used to thwart terrorism.
On the legal blog, The Volokh Conspiracy, a commenter/analyst says he agrees with the decision, but finds the judge’s opening line to be “disastrous.”
“The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is.” The American world is not dangerous. It’s incredibly safe. And it won’t become more safe to any observably meaningful degree due to anything the NSA does.
The feds had all the information available necessary to stop 9/11 and didn’t do it. The idea that knowing al-Mihdhar was in the United States through the attenuated method of reviewing phone identifiers would have prevented the 9/11 attacks is preposterous.
The CIA was aware that Khalid al-Mihdhar was in the United States — indeed he had been placed on watch lists before 9/11–but neglected to tell the FBI about it. Why should we expect the NSA to have been any better, much less that the NSA would have actually done anything useful with the information in the first place. (And why would it have mattered? Khalid al-Mihdhar was replaceable anyways.) Dude had a tourist visa!