US National Security Agency

Judges' differing rulings on NSA spy programme fuel debate

Constitutionality, security value of programme that 'vacuums up' metadata on private communications meet starkly different findings

PUBLISHED : Sunday, 29 December, 2013, 5:21am
UPDATED : Sunday, 29 December, 2013, 7:42am

A federal judge ruling that a US National Security Agency programme that collects enormous troves of phone records is legal has brought to focus an extraordinary debate among US courts and a presidential review group about how to balance security and privacy in the era of big data.

In just 11 days, two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the programme, the privacy interests at stake and how the US constitution figures in the analysis.

The latest decision, from Judge William Pauley in New York, could not have been more different from one issued on December 16 by Judge Richard Leon in Washington.

Leon ruled that the programme was "almost Orwellian" and probably unconstitutional.

The decision on Friday "is the exact opposite of Judge Leon's in every way, substantively and rhetorically", said Orin Kerr, a law professor at George Washington University in the US capital. "It's matter and antimatter."

The case in New York was brought by the American Civil Liberties Union, which said it would appeal.

The next stops for the parallel cases are the appeal courts in New York and Washington. Should the split endure, the US Supreme Court is likely to step in.

In the meantime, the decisions, along with recommendations issued on December 18 by the presidential review group, illustrate a complete absence of agreement about the effectiveness and legality of the programme, which, Pauley said, "vacuums up information about virtually every telephone call to, from or within the United States".

The two judges had starkly differing understandings on how valuable that programme is.

Pauley endorsed arguments made in recent months by senior government officials - including Robert Mueller former director of the Federal Bureau of Investigation - that the programme might have caught the hijackers of September 11, 2001, had it been in place before the attacks.

Leon, in Washington, took the opposite view.

"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," he wrote.

The presidential review group took a middle ground, although it seemed to lean towards Leon's position.

The two judges did not limit their disagreements to how well the programme worked. They also drew different conclusions about its constitutionality. The main dispute between the judges was over how to interpret a 1979 Supreme Court decision, Smith vs Maryland, in which the high court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialled from his telephone.

" Smith's bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties," Pauley wrote.

But Leon said that advances in technology and suggestions in concurring opinions in later Supreme Court decisions had undermined the Smith ruling.