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Another judge upholds NSA call tracking

A federal judge in Idaho has upheld the constitutionality of the National Security Agency's program that gathers massive quanities of data on the telephone calls of Americans.

The ruling Tuesday from U.S. District Court Judge B. Lynn Winmill leaves the federal government with two wins in lawsuits decided since the program was revealed about a year ago by ex-NSA contractor Edward Snowden. In addition, one judge handling a criminal case ruled that the surveillance did not violate the Constitution.

Opponents of the program have only one win: U.S. District Court Judge Richard Leon's ruling in December that the program likely violates the Fourth Amendment.

In the new decision, Winmill said binding precedent in the Ninth Circuit holds that call and email metadata are not protected by the Constitution and no warrant is needed to obtain it.

"The weight of the authority favors the NSA," wrote Winmill, an appointee of President Bill Clinton.

Winmill took note of Leon's contrary decision and called it eloquent, but concluded it departs from current Supreme Court precedent — though perhaps not for long.

"Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet," Winmill wrote as he threw out the lawsuit brought by an Idaho registered nurse who objected to the gathering of data on her phone calls.

Winmill's opinion (posted here) does not address an argument put forward by some critics of the program, including some lawmakers: that the metadata program violates federal law because it does not fit squarely within the language of the statute used to authorize it.

In January, President Barack Obama endorsed the idea of ending the NSA program, but maintaining its intended capability to seek out information about possible terrorist attacks. The House passed a bill last month that would instead store the data with telephone companies and have the government obtain it on a case-by-case basis, usually with advance approval from a judge. The full Senate has yet to act on the issue, although the Senate Intelligence Committee approved a measure last year that would keep the present program in place with additional safeguards.

(h/t Mike Scarcella, National Law Journal/Legal Times)