By Jean Paul Zodeaux
Only 11 days after a federal judge ruled that the bulk data collection that the NSA has been engaged in might be unconstitutional, a separate ruling by different federal judge has now held that the federal government is acting perfectly legally in spying on its own citizenry. On December 16th of this year, Judge Richard J. Leon held that the NSA spying was nearly “Orwellian” and guessing that the massive data collection is probably unconstitutional. On the 27th of December, Judge William H. Pauley held an entirely different opinion on the federal governments spying program, practically gushing with pro-government naivete and foregoing jurisprudence in favor of emotional demagoguery.
Nearly the exact opposite of the December 16th ruling in Klayman v Obama, Judge Pauley’s ruling in ACLU v Clapper is astoundingly bereft of any substantive law. Of the ruling, the ACLU’s Jameel Jaffer said:
“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections.”
Of it’s dubious victory – the ACLU will undoubtedly appeal this ruling – a spokesperson for the Justice Department had this to say:
“We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”
One of the most striking differences between the two rulings and the two judges is the understanding of how effective the massive data collection actually is in deterring terrorist attacks. Where Judge Leon held that the federal government had failed to make a credible argument as to how the massive data collection has worked in preventing terrorist attacks, Judge Pauley held the opposite and held that had the NSA had this program in place prior to to 9-11 2001 that the World Trade Center towers might still be standing.
Even more striking in its differences are the judges opposing views on the constitutionality of the NSA spy program, with Judge Leon musing that it may not find constitutionality, and Judge Pauley insisting that it is perfectly constitutional, and that difference of opinion comes down to differing opinions on precedent in Smith v. Maryland. The principle behind the Smith v Maryland ruling is that an individual has no legitimate expectation of privacy in regards to information that is shared with a third party.
The question of whether Smith v Maryland will withstand the judicial test of time is clearly at play with regards to the legality of the NSA data collection. The ruling was held in 1979 before the information revolution and the advent of the internet, and our understanding of “third parties” is quite a bit different today than it was in 1979. Even so, back in 1979 the ruling was questionable to begin with as one of its legal principles is that if an individual shares information with another party he no longer holds any expectation of privacy.
One need only look to reality to see the problem with this principle. The federal government requires corporations to collect information from their customers. Some of these corporations, such as banks, are particularly difficult to avoid as a customer in this day and age, so in order to have a bank account, that individual must surrender over information, that now, according to the SCOTUS, has no reasonable expectation of privacy. It is a racket that the Supreme Court facilitated with Smith v Maryland and the principle behind it needs to be discarded in favor one that seeks to protect the privacy of the people government is presumably protecting.