Barely a week after Judge Leon of the DC District Court held the NSA mass data-collection program to be “likely unconstitutional,” District Judge William H. Pauley III in Manhattan took the view of both Barack Obama and Dianne Feinstein, that NSA collection of every online activity somehow does not violate the Fourth Amendment.
Focusing mostly on need and effect rather than the text of and Founders’ intention for the Fourth Amendment, Pauley said the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”
While coalitions of powerful legal organizations on both the left and right are spending considerable time, energy and money on the court system as a way to stop what many Americans consider to be “Orwellian mass-spying” by the NSA, this latest ruling indicates that it is very unlikely that the courts will overturn anything.
Supporters of the court effort, though, point to Judge Leon’s recent ruling as a cause for hope. But Tenth Amendment Center national communications director suggested that it would only be a short-term victory for Fourth Amendment advocates.
“If we’re resting all our hopes on a guy who says that keeping track of everything you do online is just ‘likely unconstitutional,’ we’re in pretty big trouble,” said Maharrey.
“On top of it, most legal experts hold the view that the appeals court isn’t even going to agree with Leon’s views,” he continued.
At Lawfare, Benjamin Wittes of the Brookings Institution said that he “can’t count five votes on the Supreme Court” that would take the same position as Judge Leon.
Some grassroots organizations have pinned their hopes on getting a bill through Congress to rein in the NSA. The USA Freedom Act, co-authored by Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI), has garnered support from large grassroots organizations across the political spectrum as the best option.
Kurt Opsahl and Rainey Reitman of the Electronic Frontier Foundation consider the bill to be a good start, but pointed out that it would not do what many grassroots supporters think it would do, stop the NSA from its current surveillance and data collection programs. “The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy,” they wrote in a recent analysis of the legislation.
Maharrey suggested that the bill does not have a chance to pass. “First of all, the bill is not going to stop the NSA, and more importantly, the odds of it passing are almost zero,” he said.
Maharrey noted that in order to become law, the bill would have to first get past Senator Dianne Feinstein, who is the powerful chair of the Senate Intelligence Committee. Any legislation restricting the NSA would need her tacit approval to even get a hearing. And President Barack Obama has indicated that it is his view the NSA is not doing anything wrong.
“It’s important to note that in all the reviews of this program that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data,” said the President at a press conference on Dec. 20.
A coalition of organizations is pressing states to take action to thwart NSA spying at OffNow.org. Their proposal would do what Maharrey called “an end-run around Washington DC” by passing state-level laws that would make it difficult for the NSA to continue its current programs.
Maharrey believes this might be the only way to get something accomplished.
“I don’t trust a court system who thinks I should be taxed for doing nothing to stop NSA spying. And I sure don’t trust a congress who wrote that law in the first place to do so eit