Supreme Court May Not Review Conflicting NSA Phone Spying Ruling

Supreme Court May Not Review Conflicting NSA Phone Spying Rulings

(Updated by Endah)
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Photo: Supreme Court
There’s been plenty of discussion, even in this blog, that the Supreme Court is likely to decide whether the NSA’s telephone bulk metadata collection program may continue.
But Orin Kerr, one of the nation’s prominent Fourth Amendment scholars at George Washington University, says high court intervention is “certainly possible, but it’s not at all a sure thing.”
We’re at this guessing stage because there’s been two conflicting lower court rulings, in two separate lawsuits, on the matter. One federal judge said the program “infringes” the constitution while another declared it was “lawful.” Assuming each decision was affirmed on appeal, the Supreme Court would likely step in to resolve conflicting appellate rulings.
Orin Kerr. Photo: George Washington University
Orin Kerr. Photo: George Washington University
It’s anybody’s guess whether the appellate courts even would issue conflicting rulings. But Kerr, writing in the Volokh Conspiracy, points out one truism in this whole sordid affair: That the provision of the Patriot Act, Section 215, being cited to allow the snooping program expires June 1, 2015.
That’s 18 months away and maybe, maybe, enough time for the appellate courts to rule before the law sunsets. As the deadline nears, the political question will be front and center in Congress.
“The fresh debate over the desirability of bulk collection in Congress lessens the likelihood of the Supreme Court stepping in to the debate at that time, both because the issue may be mooted by statute and because the Court may feel that statutory regulation is preferable to constitutional regulation in this context,” Kerr notes.

The snooping first came to public light in June when NSA whistleblower Edward Snowden provided the Guardian newspaper with a classified court opinion requiring Verizon to provide the NSA the phone numbers of both parties involved in all calls, the international mobile subscriber identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls. The government confirmed the authenticity of the document, and lawmakers have subsequently said other secret orders involve the nation’s carriers in a program that began shortly after the Patriot Act was passed.
One of the most controversial provisions of the Patriot Act — Section 215 — allows the secret Foreign Intelligence Surveillance Court to authorize broad warrants for most any type of “tangible” records, including those held by banks, doctors and phone companies — specifically the bulk telephone metadata program.
Under the Patriot Act, approved in the wake of the 2001 terror attacks, the government only needs to show that the information is “relevant” to an authorized investigation. No connection to a terrorist or spy is required.

Rep. Jim Sensenbrenner (R-Wisconsin) and the Patriot Act’s author, said the President Barack Obama administration has advanced a “dangerous version of ‘relevance.’”
Last week, U.S. district Judge William Pauley of New York ruled that the phone spying was a reasonable, “vital tool” to combat terrorism and is less intrusive than the data people “voluntarily surrender” to “trans-national corporations.”

The suit was brought by the American Civil Liberties Union in June, days after the Guardian published the secret FISA court opinion. The ACLU, which appealed yesterday, claimed the program breached Americans’ rights to be free from warrantless searches and seizures. The civil rights group labeled the spying as “one of the largest surveillance efforts ever launched by a democratic government.”
However, U.S. District Judge Richard Leon of Washington, D.C. ruled Dec. 16 that America’s founding fathers would be “aghast” at the NSA’s bulk telephone metadata spying.
Judge Leon, whose decision the Obama administration appealed today, called the NSA program “almost-Orwellian,” and ordered the NSA to stop collecting or analyzing the metadata of the two conservative activists who sued. Leon stayed his order pending resolution in the appellate courts.
For his part, Judge Pauley said evidence showed the program disrupted a plot to bomb the New York subway and the New York Stock Exchange and a Danish newspaper, among other attacks. Judge Leon, however, found that the program did not help the government battle terrorism.
What’s more, both judges expressed opposing views on a key 1979 Supreme Court ruling that the Obama administration and the secret Foreign Intelligence Surveillance Court have cited to justify the spying program.