Is Anything Left?
by FRANKLIN LAMB
The answer to this question is being pondered across America in light to the two seeming mutually contradictory US Federal Court decisions handed down this month from Courts in Washington DC and New York.
The legal issue of what rights are left to American citizens that can prevent governmental intrusions into their privacy and also governmental invasions using heavy handed searches and seizures following the launching of the Bush administrations "war of terrorism' has gained new impetus following disclosures by former National Security Agency analyst turned whistle blower, Edward Snowden. Without Snowden's patriotic leaks, no legal challenge could have been brought to the NSA practices.
Now that two US Federal District Courts, with identical powers under the US Constitution have seemingly reached opposite results on the same legal issue involving the right of the NSA to conduct "metadata' searches and store the information of scores of millions of unknowing Americans the issue is likely going to have to be decided by the US Supreme Court. As predicted, appeals were immediately filed from the Trial Courts decision in both cases.
Initially, civil libertarians were encouraged earlier this month when in light of the Snowden revelations of massive US government spying on Americans and millions of foreigners, Federal Description: Judge Richard Leon of the United States District Court for the District of Columbia ruled on 12/16/13 that the bulk collection by the National Security Agency of cell phone data (everyone you called, when you called them and where you were when you called them) of Americans violates the Fourth Amendment to the Constitution and is "Orwellian".
Judge Leon explained that we now use our smartphones for a wide variety of personal activities in which we have the expectation of privacy, and probably we have more expectation of privacy from our phones now than we did from a pay phone in the 1980s. He made the point that cell phones today includes a citizens, location when one makes a call and becomes a GPS made the call, functioning essentially as a GPS. He wrote, "It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government."
Judge Leon focused on whether the NSA massive surveillance violated the 4th Amendment which provides: "The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
"The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes and investigates that data without prior judicial approval of the investigative targets. If they do -- and a Fourth Amendment search has thus occurred-- then the next step of the analysis will be to determine whether such a search is "reasonable.'"
Judge Leon found that the NSA when it demands citizens telephone metadata is conducting a search, and that it is most likely an unreasonable search of our personal effects according to the Fourth Amendment, since there is no specific suspicion of wrongdoing by any individual whose records are demanded. He immediately granted the Plaintiffs request for an injunction that blocks the collection of phone data for the plaintiffs and orders the government to destroy any of their records that have been gathered. As is common Federal Court practice, the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the "significant national security interests at stake in this case and the novelty of the constitutional issues."
No sooner had the Judge Leon decision been published and was encouraging civil libertarians to argue that the US Constitution still protects some citizen rights against government abuse than US Federal District Judge William H. Pauley III in New York ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data. In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis. The latest decision could not have been more different from one issued by Judge Richard J. Leon in Washington, who ruled that the program was "almost Orwellian" and probably unconstitutional.
Judges Leon and Pauley have starkly differing understandings on how legal that program is. 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 F.B.I. director Robert S. Mueller III -- that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks. Wrote Judge Pauley: "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 program is lawful," Judge Pauley wrote on Friday. "This court finds it is."
Judge Pauley decided to ignore several compelling US Constitutional issues and applications of its provisions to the NSA case. He chose to avoid 4th Amendment prohibitions on unreasonable government searches of private papers and effects. As Professor Juan Cole recently reminded us, the 14th Amendment was the basis for a recent Supreme Court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts decided that following someone around 24/7 as a "search" because such intensive monitoring of a person's movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones track individuals just as a GPS devices do.
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