Less than two weeks after a federal judge in Washington found that the government has gone too far in its massive collection of telecommunications data, a federal judge in New York concluded just the opposite.
Absent action by Congress to clarify the issue - and strengthen oversight and accountability for the National Security Agency - these cases will continue to drag out in the courts. Meanwhile, the NSA will continue its overbroad intelligence-gathering operations.
In his Dec. 16 ruling, Judge Richard Leon found the NSA's metadata program "almost Orwellian" in scope, and said it probably violates the Fourth Amendment's prohibition against unreasonable search and seizure.
Similar objections could be applied to the agency's other operations, revealed by renegade NSA contractor Edward Snowden. Those include hacking major Internet providers.
The German news magazine Der Spiegel reported this week that the NSA has been able to access information on personal iPhones since 2008.
Judge William H. Pauley III, however, came to an opposite conclusion on the NSA metadata program in his ruling last week. The program that collects information of "substantially every telephone call in the United States" is warranted by the government's failure to connect the dots before the 9/11 terrorist attacks, he said.
"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world," Judge Pauley wrote. "It launched a number of counter-measures, including a bulk telephone metadata collection program - a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data."
Judge Pauley cited three instances where the program had been instrumental in halting terrorists. In contrast, Judge Leon and Senate Judiciary Committee chairman Patrick Leahy, D-Vt., separately concluded that the program had made virtually no contribution to national security.
At issue before the court is whether the sweeping collection of telephone data violates Americans' right to privacy. The Justice Department's contention that metadata isn't private information relies on a 1979 Supreme Court ruling on telephone records held by a third party.
Given the exponential advances in technology since then, the full range of electronic snooping by the NSA should be revisited and new safeguards put in place.
While ruling in favor of the NSA's metadata program, Judge Pauley said, "This blunt tool only works because it collects everything." He added, somewhat ominously, "Such a program, if unchecked imperils the civil liberties of every citizen."
The scope of NSA activities, revealed by Mr. Snowden, indicates that the agency, though not actually unchecked, is far more intrusive than ever imagined.
A presidential panel has urged new limits to the agency, and President Obama is expected this month to make some revisions to rules governing the NSA, which is an executive agency.
Barring his imposition of major new safeguards, Congress should be prepared to impose additional restraints and oversight upon the NSA. The agency's sweeping metadata program is a good place to start.
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