Fed. Judge Upholds NSA Phone Data Collection, Despite Doubts

By:  Joe Wolverton, II, J.D.
06/06/2014
       
Fed. Judge Upholds NSA Phone Data Collection, Despite Doubts

A federal judge in Idaho has upheld as constitutional the National Security Agency’s (NSA) dragnet surveillance of phone metadata.

In his decision, Judge B. Lynn Winmill indicated that his decision could have gone another way had he not considered himself bound to confine his opinion to guidelines set out in current Supreme Court decisions.

Had he felt free from such fetters, Winmill may have ruled against the program which he reckons likely violates the Fourth Amendment’s guarantee of freedom from unreasonable searches and seizures.

Despite his apparent misgivings, however, Judge Winmill held that the ruling in Smith v. Maryland applies to the case he was called to consider.

In light of the broad discretion granted to government and law enforcement by the Supreme Court in the 1979 case of Smith v. Maryland, police (and those to whom the information gleaned from the cellphone was shared) could do whatever they deem “reasonable” with regard to the information obtained from the warrantless search of the cellphone.

In the case of Smith v. Maryland, the court held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

The court in that case ruled that if someone is talking to another person by way of a medium provided by a third party (in the Smith case it was a telephone company), both parties must expect that the “intermediary” will have access to the content of the communication.

Regarding the telephone company, the court explained that when a person uses a telephone, he “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business.”

Documents released by former NSA subcontractor Edward Snowden reveal that the NSA “has the ability to record ‘100 percent’ of the phone calls of a foreign country and then access those calls, replaying them months after they were made.” The NSA claims that the data collected include phone numbers, call duration, and other so-called “metadata,” but, the agency insists, the content of the calls is not recorded.

Other federal judges who considered the wholesale collection of phone data by the NSA haven't felt compelled to come down on the side of the government, however.

In a 68-page Memorandum Opinion issued on December 16, 2013, Judge Richard J. Leon of the U.S. District Court for the District of Columbia ruled that the NSA’s unwarranted surveillance of telephone calls is prohibited by the Fourth Amendment’s protections against unreasonable searches and seizures.

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