The National Security Agency campus in Fort Meade, Maryland. (AP)
Washington, Dec. 27: A federal judge in New York today ruled that the National Security Agency’s programme that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.
In the ruling, Judge William H. Pauley III, of the US district court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the programme brought by the American Civil Liberties Union, which had tried to halt the programme.
Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies.
“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling.
“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata programme is lawful. This court finds it is,” he added.
A spokesman for the justice department said: “We are pleased the court found the NSA’s bulk telephony metadata collection programme to be lawful.” He declined to comment further.
The ruling comes nearly two weeks after Judge Richard J. Leon of the Federal District Court for the district of Columbia said the programme most likely violated the Fourth Amendment. As part of the ruling, Judge Leon ordered the government to stop collecting data on two plaintiffs who brought the case against the government.
In his ruling, Judge Leon said that the programme “infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment”, which prohibits unreasonable searches and seizures.
While Judge Leon ordered the government to stop collecting data on the two plaintiffs, he stayed the ruling, giving the government time to appeal the decision.
Judge Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials — including the former FBI director Robert S. Mueller III — that the programme may have caught the September 11, 2001, hijackers had it been in place before the attacks.
In the months before September 11, the NSA had intercepted several calls made to an al Qaida safe house in Yemen. But because the NSA was not tracking all phone calls made from the US, it did not detect that the calls were coming from one of the hijackers who was living in San Diego.
“Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation of the fact that al-Midhar was calling the Yemeni safe house from inside the United States,” Judge Pauley said, referring to the hijacker, Khalid al-Mihdhar.
Judge Pauley said that the “government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world”.
The government, he added, “launched a number of countermeasures, including a bulk telephony metadata collection programme — a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data”.
The main dispute between Judge Pauley and Judge Leon was over how to interpret a 1979 Supreme Court decision, Smith v. Maryland, in which the court said a robbery suspect had no reasonable expectation that his right to privacy extended to the numbers dialled from his phone.
“Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” Judge Pauley wrote.