The NSA watches you poop.

Judge Leon wrote:

?On June 5, 2013, the British newspaper The Guardian reported the first of several ?leaks? of classified material from Edward Snowden, a former NSA contract employee, which have revealed ? multiple U.S. government intelligence collection and surveillance programs? [including] a FISC order ? compelling [telecoms] to produce to the NSA on ?an ongoing daily basis? ... ?telephony metadata? created by [them].? According to the news article, this order ?show[ed] . . . that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk-regardless of whether they are suspected of any wrongdoing.?

Judge Pauley:

?The September 11th terrorist attacks revealed ? just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us ? and it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.?

That factual issue?whether the indiscriminate seizure of American telephony metadata is necessary or even contributes to national security?was the source of conflict as well. Judge Pauley followed his introduction about 9/11 with an endorsement of the government?s position that domestic spying has helped disrupt bomb plots against the New York subways, the New York Stock Exchange and a Danish newspaper. Devoting considerable space to the case of Khalid al-Mihdhar, a 9/11 hijacker who was living in San Diego in 2001, Pauley wrote that ?NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States,? but that ?telephony metadata ? might have permitted the NSA to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States,? and possibly foiled the 9/11 attack.

Judge Leon, however, found two weeks ago that the program did not help the government fight terrorism, concluding that ?the government does not cite a single instance in which analysis of the NSA?s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.?

Ironically for Judge Pauley and the Obama administration, the President?s own NSA presidential review panel released a report in mid-December debunking reliance on the al-Mihdhar case and concluding that the spying ?was not essential to preventing attacks,? and could be safely replaced with less intrusive methods. The panel findings came after ProPublica reported in June that U.S. intelligence knew al-Mihdhar?s identity ?long before 9/11 and had the ability find him, but they failed to do so.?


The judges disagreed on the law as well, in particular the 1979 Supreme Court case of Smith v. Maryland, which the Obama administration and the FISC have cited to find the spying program constitutional. In Smith, the court held a suspected purse-snatcher, who had been threatening his victim via telephone calls, had no reasonable expectation that his right to privacy extended to the numbers dialed from his phone, which police had obtained from the phone company without a warrant.

According to Judge Pauley, ?Smith?s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties,? hence the government can seize records of every phone call made by every American without a warrant or indeed any suspicion of wrongdoing. Rejecting suggestions that technological changes since 1979?when rotary phones were still more widely used than touch tone models?made any difference to the law, Pauley wrote that customers? ?relationship with their telecommunications providers has not changed? since 1979. Pauley nevertheless admitted that the collection program, ?if unchecked, imperils the civil liberties of every citizen.?


Judge Leon, however, ruled that Smith no longer applies in the digital age, writing that ?present-day circumstances?the evolutions in the Government?s surveillance capabilities, citizens? phone habits, and the relationship between the NSA and telecom companies?[have] become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that ? Smith does not apply.? In reaching that conclusion, Leon was following the leads of the presidential review panel, which questioned whether Smith was ?still good law,? and two recent Supreme Court opinions that have raised the same issue.

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Before he left for Hawaii, the president was sending signals that government surveillance programs need an overhaul to restore the public's faith on issues of national security.

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'We have to change the perception among our citizens that the intelligence agencies can't be trusted.'

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