NSA Win Leaves Security of Cell, Cloud Data Uncertain

Contradictory court decisions leave privacy, data security uncertain.

The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece.

The contradictory decisions use similar reasoning and criteria to come to opposite conclusions, leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies.

On Dec. 27, Judge William H. Pauley threw out a lawsuit filed by the American Civil Liberties Union (ACLU) that sought to stop the NSA PRISM cell-phone metadata-collection program on the grounds it violated Fourth Amendment provisions protecting individual privacy and limits on search and seizure of personal property by the federal government.

Pauley threw out the lawsuit largely due to his conclusion that Fourth Amendment protections do not apply to records held by third parties.

That eliminates the criteria for most legal challenges, but throws into question the privacy of any data held by phone companies, cloud providers or external hosting companies – all of which could qualify as unprotected third parties.

The Pauley case involved the NSA’s PRISM surveillance program to collect metadata identifying all the calls made to or from almost every cell phone in the United States, which Pauley described as a “blunt tool [that] only works because it collects everything,” according to The New York Times.

The NSA didn’t limit its surveillance to metadata on phone calls, however. Revelations by whistleblower Edward Snowden and documents revealed by other government agencies suggest that the NSA eavesdropped on the phone calls of foreign political leaders, collected data on the Internet activity of Americans through the databases of foreign ISPs and tapped directly into the datacenter-network feeds of Google, Yahoo and other U.S.-based Internet giants.

Many of those efforts violated even the most permissive interpretations of federal officials and judges responsible for approving and supervising its surveillance of U.S. residents – violations of federal law the NSA either tried to avoid admitting or tried to justify after the fact according to a Nov. decision by a judge on the Federal Intelligence Surveillance Court that is the ultimate judicial authority for those activities.

While damning, that ruling avoided the question of whether to halt existing programs, recommending instead that supervision of the agency be tightened, rules be defined in more detail and that intelligence agencies follow rules designed to limit their powers.

A Dec. 16 ruling by Washington, D.C. federal-court Judge Richard J. Leon, on the other hand, declared that even the subset of NSA surveillance involving collection of metadata on cell-phone calls was likely to have violated the Fourth Amendment.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” according to Leon, who was appointed to the bench by President George W. Bush, whose administration sponsored and supported the Patriot Act and other legislation under which the NSA claims it acted. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”

That decision and Pauley’s Dec. 27 ruling use similar reasoning and criteria, but come to opposite conclusions, leaving no clear indication of the likely outcome of a question that will almost certainly have to be decided by the Supreme Court. Both judges acknowledged the likelihood their own decisions would be overturned or superseded.

Pauley – a 1998 appointee of then-President Bill Clinton – based his support of the NSA on national security and the need to prevent a repeat of the Sept. 11, 2001 terrorist attacks on New York.

The NSA’s methods are extremely broad and wide-ranging, but defensible due to the high national interest in preventing more attacks and the potential for vast databases to “find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.”

Leon’s decision against the NSA was based on his rejection of the Justice Dept.’s claim of support from a 1979 Supreme Court decision that said collecting data on all the numbers calling or being called from the phone number of a suspect under surveillance was not an invasion of privacy because only numerical data were involved.

Technology has changed so much and the volume of data that can be collected and information that can be inferred by metadata has become so great that it is almost impossible to apply the 1979 Smith v. Maryland decision to the present day, let alone the specific interpretation of the NSA, according to Leon, who described the metadata program as “Orwellian.”

U.S. residents have a “very significant” expectation of privacy in cell-phone calls and other digital activity that must be balanced against the critical nature of the government’s security concerns, methods of surveillance and efficacy in using collected data to prevent more terrorist attacks.

The Justice Dept. countered by claiming that data-collection programs did not violate those protections because personal information about individuals was unlikely to be interesting to agencies looking for evidence of terrorism. NSA officials have said data collected under PRISM and other surveillance programs revealed by whistleblower Edward Snowden would be held for as long as five years even when nothing in it turned out to be relevant to any active investigation.

“I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones,” Leon wrote.

The NSA program is so broad that it “vacuums up information about virtually every telephone call to, from, or within the United States,” Pauley wrote.

Existing rules and precedents, however, are often contradictory and rarely fully in sync with the technology being used for either communication or for keeping those communications under surveillance.

The ACLU plans to appeal the decision based on its contention that the NSA’s interpretation of the Patriot Act was so broad it could justify the collection of almost any type of digital data concerning or owned by almost any U.S. resident.

Pauley’s decision “misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” according to Jameel Jaffer, ACLU deputy legal director in the ACLU’s response to the decision.

“While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” Pauley ruled.

Both Pauley and Leon have acknowledged, however, that it will likely be the Supreme Court that decides whether PRISM or any of the other NSA programs are unconstitutional, no matter how far in the dark that lack of result leaves the owners and originators of the data being collected.


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