The ACLU Will Appeal Court Decision Declaring The NSA’s Phone Metadata Program Legal

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In an expected move, the American Civil Liberties Union (ACLU) today announced that it would appeal the dismissal of its case relating to the National Security Agency’s telephony metadata program. Recently, US District Judge William Pauley III ruled that the program was constitutional.

The case in question, ACLU v. Clapper, was set back by Judge Pauley III who invoked past terror attacks as reason for the metadata program’s existence, and argued that protections under the Foreign Intelligence Surveillance Court were stiff enough to protect constitutional rights.

The ACLU disagrees, and in a statement claimed that “the NSA’s call-tracking program violates both statutory law and the Constitution.”

There have been two legal decisions of note thus far regarding the NSA’s surveillance programs and their relation to the rights of American citizens. The first ruling, Judge Richard Leon indicated that the metadata program was likely unconstitutional. The second, and the one under new appeal by the ACLU, came to the precise opposite conclusion.

The Pauley III decision contains a piece of argument that I find, as have hosts of others, particularly troubling.

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered the section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets – including the means and methods of intelligence gathering – could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215′s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 2015 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

The argument that if a party learns of potential government abuse via a leak there should be no legal recourse for them due to the source of the information is unsettling, in my view. This case is therefore more broad in its impact than the fate of a single NSA program.

The ACLU hopes that the Second Circuit of Appeals “will set an expedited briefing schedule and that it will hear oral argument in the spring [of 2014.” Regardless of who wins that case, expect another appeal.

For now, it’s plain that the legal underpinnings of the NSA’s programs and the constitutionality of its actions will be thoroughly vetted in court.

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