Judge William H. Pauley III ruled today that NSA bulk phone metadata collection, first revealed to the public in 2005, 2006 and again by Glenn Greenwald in June of this year, is legal. This ruling on a lawsuit against the government and Director of National Intelligence James Clapper by the ACLU is in direct conflict with a ruling earlier this month in a case brought by far-right operative and Birther Larry Klayman.
Judge Pauley’s ruling is based upon the much-discussed 1979 Supreme Court decision in Smith v. Maryland. In Smith, the Court ruled that unlike an illegal search of your home or possessions, when your phone call information reaches a third-party, such as Verizon in the context of the ACLU’s suit, the presumption of privacy is lost, since you’re, in effect, handing over your number and the number you’re calling to a private company.
“Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,” Judge Pauley wrote.
Supporters of the ACLU’s lawsuit, as well as the ACLU itself, claim that bulk collection was never envisioned when the Court ruled on Smith.
Jameel Jaffer, the A.C.L.U. deputy legal director, said the group intended to appeal. “We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” he said.
As of this writing, Glenn Greenwald has yet to comment on the ruling, though his reaction is likely to again rebuke the applicability of Smith as a legal precedent.
One of the president’s privacy review panel recommendations was to reform the bulk collection process so that instead of NSA retaining the bulk phone records, the metadata would instead by stored by the various phone companies until needed and accessed by NSA analysts. This revised process could be further legitimized by the Smith precedent.
So at this point, the ACLU will certainly appeal the ruling. The government will also appeal the earlier Klayman ruling. From there, one of these cases is bound to make its way to the Supremes.