Judge Leon of DC: Circumventing the Supreme Court and Making New Law, Ruling Program Likely Unconstitutional

Judge Pauley of NY: Following Supreme Court Precedence Properly, Ruling Program Constitutional

Conclusion: The Need for Democratic Policy Debate Without Hair-on-Fire Indignation

In the past weeks, two federal district judges have issued two conflicting rulings on the NSA's telephony metadata gathering program. Judge Richard Leon (a Bush appointee) of the DC circuit ruled that the program had a substantial likelihood of being found unconstitutional, and Circuit Judge William Pauley (a Clinton appointee) of the Southern District of New York dismissed a lawsuit by the ACLU , ruling the program legal and Constitutional. Neither ruling overrides the other, however, Judge Leon has stayed his decision of enjoining the government from collecting phone records of the plaintiffs, pending appeal.The two decisions are in apparent conflict; however, an analysis of the two must start withIn both lawsuits, plaintiffs - ACLU in the New York case and a conservative activist lawyer in the DC case - alleged two violations: constitutional as well as legal. On the legal ground, the plaintiffs argued that even section 215 of the PATRIOT Act does not authorize the bulk collection of meta-data, and thus NSA's programs are illegal.Both ruled that the plaintiffs couldn't bring the suit on the grounds of the law in the first place, since the law only permits those receiving a data gathering request (i.e. phone companies) to sue. Going further, Judge Pauley also ruled that the plaintiffs would lose the legal case on the merits even if they did have standing.Both judges also recognized the plaintiffs' standing, however, to bring the Constitutional claims. Both claims rose from plaintiffs being customers of phone service providers whose meta-data (call records, not content) were collected by the NSA. Both claims allege violation of Fourth Amendment rights of the plaintiffs, and the ACLU in the New York case also alleged chilled free speech.. This is where the two diverge in their rulings.Judge Leon (in his own right a part of the Clinton witch-hunt in the 1990s) ruled that the plaintiff - interestingly, a right wing lawyer who adorns such conspiracy theories as the UN contemplating to destroy the white supremacy, I mean "Judeo Christian values" of the United States and Obamacare coming for you - had a substantial likelihood of success on the merits. While not yet ruling on the merits, the judge wrote that he would likely agree with Larry Clayman, the right wing conspiracy theorist and the plaintiff in his case.No one should be surprised to learn that it was theand not the the Democratic appointee Pauley, thatrather than follow established law or Supreme Court precedence. Leon does so in a rather dangerous way - how it is dangerous I will discuss in a little while, but first the jest of his ruling: Judge Leon: his entire ruling is an exercise in finding ways to scuttle clear Supreme Court precedence.The defining Supreme Court case here isin which the Supreme Court found that individuals did not have a reasonable expectation of privacy over meta-data because those records are maintained by, with the consent and the knowledge of the users, third party service providers. Because a phone subscriber willingly turns over the calling metadata (number dialed, time and duration of call, etc., but not including the content) to a third party, they forfeit any fourth amendment claim to privacy in the metadata. It therefore followed thatJudge Leon reasoned that this precedence from the highest court in the landbecause ofJudge Leon rebuffed the government's citation ofon the grounds that cell phones in 2013 are far more advanced technology than telephones in 1979, as well as that they are far more ubiquitous, rattling off statistics on number of mobile subscribers and mobile penetration.Stop here for a second andof a district judge's ability to discount a Supreme Court precedence because technology and the use of technology is different now. What is to prevent anti-women governors from coming before the judge and asking him to set Roe v. Wade aside and decide that a 10-week abortion ban should be legal because the use of contraception and home pregnancy tests are more advanced and ubiquitous technology than they were in 1973?But even Judge Leon himself admits that the definition of metadata has not changed from the time ofto now. Then why doesn'tapply? The judge compared the case with two other cases of tracking the movements of an individual - in one case the Supreme Court ruled that tracking someone's movement using public equipment (traffic cameras and such) without a warrant did not constitute a search under the fourth amendment ( US v. Knotts ), while warrantless bugging of someone's car with a GPS tracking device did ( US vs. Jones ).Judge Leon's only problem may be though that Knotts and Jones cases may be applicable here in exactly the opposite way that Judge Leon intends: GPS tracking represents the content of your phone calls - record of your movement possibly in nonpublic areas as well as installation of a tracking device while third party (public street) records of a vehicle represents metadata.Luckily for me, this isn't simply my conjecture. In the New York case, the ACLU cited thecase in its favor. Judge Pauley, in his decision dismissing the lawsuit and upholding the metadata gathering program, expressly points this out, saying that the Supreme Court held that to be a search under the fourth amendment not simply because of the advancement of the technology employed but by bugging a car with a GPS device, the government essentially occupied private property without a warrant. Neither the abundance nor the advancement of either GPS or cars had anything to do with deciding whether or not it constituted a search under the Fourth Amendment, Judge Pauley notes.Judge Pauley took the far more direct and more correct view of Supreme Court precedence on the fourth amendment. He sets aside the notion that the amount of data collected somehow turns into a fourth amendment search something that wouldn't have been otherwise.notes Judge Pauley's opinion.Judge Pauley stresses the key flaw in the ACLU's suit in particular - but also the gaping flaw that seems to pervade both popular media and other suits of the same nature: the contention that the phone records metadata belongs to the subscriber of a service. As the Supreme Court ruled inIt belongs to the service provider. Thus, to paraphrase the judge, no one is providing "your" call records to anyone, since the list ofAnd this metadata hasbelonged to the subscriber or user. As Judge Pauley notes, the Supreme Court held back in 1967 that the Fourth Amendment doesprevent a postal inspector from copying and keeping a record of the information contained outside of a sealed envelope (the original "metadata"), and that only thethe sealed envelope is protected under the Constitution. (Cohen vs. US)While Judge Leon does not address First Amendment grounds at all, Judge Pauley does. Having thrown out their Fourth Amendment claim, the Judge notes, the ACLU's First Amendment claim becomes specious.Not only is it a highly speculative fear, as the Judge noted elsewhere in his opinion, a query of the database requires additional steps beyond those to gather the information, and even then, the government is unaware of the identity of the people associated with any of those phone numbers. The government knows A called B who called C (where A is a known terrorist number), but it doesn't know who B or C are, absent a warrant.There are those who will point out that the having calling information may be enough to determine the identity of a given person through searches on a bunch of other public databases and social media. While Judge Pauley doesn't address that in particular (because it is not the substance matter of this case), I will: putting one's number and name on a public database or publicly available social network home page is itself surrendering one's Fourth Amendment rights. You cannot write your full name in big letters on your front door and then complain that someone found out where you live.Given the facts of these cases, Supreme Court precedence, and the fact that Judge Leon is flatly trying to write new law and circumvent direct Supreme Court precedence, I see little reason for the cheer that was let out of Snowden and Greenwald fans after Judge Leon released his decision. Snowden's victory lap, therefore, is also premature (at the very least). Their exuberance, indeed Judge Leon's decision, is a sand castle - a legal novelty invented by a judge looking to ignore clear Supreme Court precedence.It is important to note, as Judge Pauley has, however, thatJust because something is legal and constitutional does not make it the best policy. It is the job of the President, Congress, and the American people to evaluate the merits of it on policy grounds.But so long as the debate centers around indignant, hot-headed, insane rants about police state and violation of rights, progress will not be possible. So long as the opponents of the policy are focused on trying to convince their supporters that their rights are being violated or that the government is listening to all their calls (neither of which is the case), the waters of civil debate will continue to be polluted. The politicalIf with that understanding, cooler heads come to the table - the way the president's appointed commission did - and put together the best ideas to modify or create the most effective policy to protect our country and alleviate concerns, we can find a solution. We can address everyone's concerns. As the president has long invited, let's have that debate. Let's live up to our responsibilities as citizens of a democratic republic rather than acting like party to an angry mob.