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The National Security Agency surveillance saga continues, as the United States Justice Department attempts to block the most successful lawsuit levelled against its current surveillance of American citizens’ phone records.  Whistleblower Edward Snowden’s revelations have been the cause of tension in a recent succession of conflicting court rulings that mark the first instances of a federal judge considering the NSA’s metadata collection program outside of the secret Foreign Intelligence Surveillance Court.

District of Columbia Judge Richard J. Leon ordered the government to stop collecting the calling data of plaintiff attorney Larry Clayman. Clayman is demanding the government produces operational information on NSA surveillance practices as the court case proceeds to discovery. The Justice Department’s latest motion attempts to deflect Clayman’s demands on the grounds that “disclosure of such extraordinarily sensitive information” could damage national security.

Leon’s 68-page ruling questioned whether the “almost Orwellian” surveillance practices are constitutional, pointing to the Obama administration’s inability to demonstrate “a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack”.

The judgement resonates with a Presidential Advisory Board’s December 2013 report advising the White House that the “government should not be permitted to collect and store mass, undigested, non-public personal information about US persons” and recommending “important restrictions on the ability of the Foreign Intelligence Surveillance Court”.

Yet in the week following Leon’s ruling, Manhattan US District Judge William H. Pauley III upheld the US government’s blanket collection of citizens’ phone records as lawful, echoing the FISC’s 35 separate rulings.  In contrast to Leon’s ruling, Pauley dismissed the American Civil Liberties Union’s claim that the metadata collection program violates Fourth Amendment privacy rights.

“An individual has no legitimate expectation of privacy in information provided to third parties under the Fourth Amendment.”

The 54-page decision endorsed the view that the NSA’s program “only works because it collects everything” and further that “telephony metadata … might have permitted the NSA to notify the Federal Bureau of Investigation” preventing the September 11 terrorist attacks. A US Justice Department spokesperson welcomed the ruling, indicating the administration is “pleased the court found the NSA’s bulk telephony metadata collection program to be lawful”.

The two judgements clash over the use of the Supreme Court ruling in Smith v Maryland to protect metadata collection from Fourth Amendment privacy rights. As described by Pauley, Smith v Maryland sets the precedence that “an individual has no legitimate expectation of privacy in information provided to third parties under the Fourth Amendment”. Arguably, Leon’s judgement is significant in rejecting Smith v Maryland, recognising that technological advances have resulted in the majority of communication being directed through third-party phone and internet providers.

On the other hand, Pauley’s judgement agreed with an October 2013 FISC opinion using Smith v Maryland to establish “the inapplicability of the Fourth Amendment” to the NSA. The opinion relied upon Smith v Maryland to argue the production of metadata doesn’t constitute a search under the Fourth Amendment (which prohibits illegal search and seizure), upholding FISC’s long-standing support of the metadata program’s legality. Pauley’s decision prompted backlash from the plaintiff’s lawyer, Jameel Jaffer, who later denounced the ruling as misapplying a “narrow and outdated precedent to read away core constitutional protections”.

This judicial conflict liberates the issue of NSA surveillance’s legality from secret FISC proceedings to the public arena. Notably, the FISC is the only non-adversarial court in the US, meaning proceedings lack the cross-examination and scrutiny usually provided by an opposing party.

The FISC’s credibility has been a casualty of Snowden’s revelations as Congress reacted to the scope of NSA surveillance capabilities by scrutinising the FISC for allowing such practices. A panel of NSA and FBI representatives endured unanimous condemnation during a House Judiciary Committee hearing on the FISC last July.

FISC’s judicial oversight was thoroughly questioned during the hearing, though a veil of confidentiality gave the panel’s “balancing security with privacy” rhetoric little clarity. The panel had nothing to say to committee claims that the very collection of phone records constitutes violation of the Patriot Act.

Legally speaking, collection of metadata under s215 of the Patriot Act requires a “relevancy standard” designed to prevent the blanket collection of everyone’s data. However, the FISC secret rulings have effectively rewritten s215 to allow the collection of all phone records. Essentially, even the most stringent checks and balances in accessing the records distract from a more fundamental violation in collecting citizens’ records to begin with.

Republican Congressman Jim Sensenbrenner headed the committee’s bipartisan rejection of the metadata collection program. As coauthor of the s215 amendment preventing blanket collection, Sensenbrenner  threatened the NSA and FBI representatives with non-renewal when the s215 expiry approaches.

The current court cases will likely move to appeal, providing the Supreme Court an opportunity to examine the constitutionality of metadata collection and resolve longstanding uncertainty over the legality of the US government’s surveillance practices.

Peter Fray

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