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Federal Courts Split on Constitutionality of NSA Data Gathering Program

By Timothy L. Graves, Esq.

A federal judge in New York recently held that the National Security Agency's program that collects the metadata of telephone calls is constitutional. Metadata refers to the information that is created whenever a phone call is made, such as the time the call was made, its duration, and to whom the call was placed. This decision was predicated on the authority of Congress to set up such a program and that the individual telephone user does not have a reasonable expectation of privacy in his or her phone metadata. The decision stated that the phone user does not own the metadata of their phone usage, rather it is owned by the phone service provider. The Judge held that it is not a violation of privacy rights to have the entire phone users in the United States' metadata collected and analyzed.

This decision by Judge Pauley is in almost complete contradiction to an earlier ruling on a similar challenge to the NSA's data collection program. U.S. District Judge Richard J. Leon held earlier this year, in Washington D.C., that the NSA metadata collection program "most likely violates the Constitution." This decision was based on the 4th Amendment prohibition on violations of reasonable expectations of privacy. Judge Leon ordered the NSA to cease its collection activities, but stayed the order while the case was under appeal. An analysis of Judge Leon's ruling can be found here.

The two rulings did agree on a few points. Both federal judges held that individual phone users in the United States have the ability to challenge the NSA's data collection. However, both judges also held that these challengers could not use the argument that the NSA's activity was itself illegal.

The fact that these two courts have held diametrically opposed rulings will most likely spur the Supreme Court of the United States to take the case sooner rather than later when these cases appeals eventually make their way to the highest court in the land.

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