The plaintiffs in Friday's suit "assert that 'their' telephone records 'could readily be used to identify those who contact Plaintiffs.'" In Judge Leon's ruling, where he determined the NSA's program is likely unconstitutional, he changed Supreme Court precedent by holding that a previous ruling allowing a pen register in a criminal investigation on one person is different now because the technology our phones are capable of are vastly different than the types in the late 1970's when that Supreme Court decision was delivered.
The key area in which the two judges disagreed was on the success of the program in thwarting imminent threats in a timely manner. Judge Leon, and the president's independent advisory board, believe the government had not demonstrated an example where the collection of telephony metadata contributed to an imminent attack. Judge Leon stated in his opinion, "I am not convinced at this point in the litigation that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations." Judge Pauley addresses this same issue by writing in his decision, "...there is no way for the Government to know which particle of telephony metadata will lead to useful counterterrorism information. When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation." He also asserted that, "National security investigations span 'long periods of time and multiple geographic regions,'" differentiating them from typical criminal investigations and requiring a diverse approach.
I have maintained that the mere collection of metadata does not violate the Fourth Amendment's right to privacy and that the government does have a compelling interest to protect it's citizens. Judge Pauley believes that individuals or organizations such as the ACLU "forfeit" their right to privacy when they "voluntarily convey information to a third party" such as a telephone company. Again, I am not insinuating the program is perfect and in fact there should be improvements, such as obtaining warrants for further searches, but the collection of metadata does not infringe on rights of privacy. The Fourth Amendment protects against physical searches and instances where there is a general presumption of privacy. The difference between utilizing GPS functions of phones for investigations and surveilling a suspect without a warrant lies in the Supreme Court case of United States v. Jones. In Jones, the police placed a GPS tracker on Mr. Jones's vehicle without a warrant and were able to track his location constantly. In this case, law enforcement physically violated Mr. Jones's privacy by physically placing the device on his vehicle. As Judge Pauley stated in his decision, we forfeit information when providing it to a third party. As Judge Pauley maintained, "The right to be free from searches and seizures is fundamental but not absolute," just as every constitutional amendment has caveats.
Judges Leon and Pauley also disagree on the interpretation of Smith v. Maryland, which I alluded to earlier. Judge Pauley believes the information being collected now does not differ from the information collected by the pen register in Smith regardless of the technological advancements. The two decisions also conflict on the issue of fingerprint and DNA databases. According to Judge Leon, unlike DNA databases, which houses fingerprints, hair, etc., NSA databases are updated daily, which, "implicates the Fourth Amendment each time a government official monitors it." Judge Pauley disagrees: "the Government’s subsequent querying of the telephony metadata does not implicate the Fourth Amendment–anymore than a law enforcement officer’s query of the FBI’s fingerprint or DNA databases."
Ultimately, these types of suits are going to have to be determined by the Supreme Court. The various appellate courts are most likely going to disagree with other appellate rulings, which will compel the Supreme Court to rectify conflicting rulings affecting the NSA's programs. Given the short time in between rulings, it is clear more and more district courts will be hearing and ruling on the NSA's programs, which will create a major issue for the NSA with multiple conflicting rulings. Whether the Supreme Court wants to rule on the NSA or not, I believe they will have no choice if more conflicting rulings come forth.
It is also important to make note of one point Judge Pauley makes toward the end of his decision. Judge Pauley's point is a rather dangerous insinuation along the lines of former Justice Department Counsel under President Bush, John Yoo who believed if the president OK'd a program, it was constitutional. Judge Pauley stated, "The Constitution vests the President with Executive Power. U.S. Const. Art. II. That power reaches its zenith when wielded to protect national security." This is an alarming, slippery slope in which the Executive can reign autonomous over the other three branches, which undermines the separation of powers including the power granted to Judge Pauley himself. While Judge Pauley asserts in his decision that the NSA's programs underwent the proper constitutional channels being authorized by congress, signed by the president, and obtaining warrants through the judicial branch, unchecked power endangers our very societal construct.