Saturday, December 28, 2013

Federal Judge in New York rules in favor of NSA, contradicting earlier federal court ruling in DC

A federal judge in New York has issued a ruling opposite (more or less) of a previous ruling from the DC court, on the issue of NSA meta-data spying based on the “pen register” concept for telephone (and possibly other electronic) communications. The New York Times story by Adam Liptak and Michael S, Schmidt is here

The New York case is called ACLU v. Clapper (filed against the NSA head).
The pen register idea goes back to a 1979 case before the Supreme Court, Smith v. Maryland (Findlaw link ).
Judge William H. Pauley III ruled that an pen register system had to be omnipotent to be effective, and needed a record of all “degrees of separation” to find genuinely suspicious activity.  He noted that before 9/11, the NSA had intercepted calls to a safe house in Yemen by Khalid al-Mihdhar, but did not have the capability to determine that the potential terrorist was in San Diego rather than overseas.
Pauley referred to a 2012 opinion on U.S.  v. Jones, which had considered the limits of technology in tracking drug dealers or other criminals, link here.
The White House has a paper “Liberty and Security in a Changing World: Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies”, link here
Jim Scuitto and Evan Perez of CNN write “Review: NSA snooping program should stay in place”, link here.
The Pauley court opinion is here and the link was provided by attorney Paul Volokh.  

On CNN Saturday, the "Legal Guys" said that the New York opinion (rendered in a courtroom near the World Trade Center) applies to many more people.  Appeals courts will hear both cases next.  

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