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December 28th, 2013
The lead article in today’s New York Times, “A Judge Upholds N.S.A. Collection of Data on Calls,” shows why we need a Supreme Court. Two separate judges within a few weeks ruled in opposite ways on the N.S.A. program revealed by Edward Snowden, the collection of meta data for every phone call placed by every person in the United States.
The federal government has tried to placate privacy advocates by noting it is collecting only “meta data,” that is the number called and time as opposed to the conversation itself. But that makes the program no less draconian in its scope and potential for misuse.
However, Judge Pauley does not seem to think so. Perhaps because his office is only a few blocks away from the spot where the World Trade Center was located, he ruled that the program is legal, that a search unprotected by the Fourth Amendment becomes no less legal if it is carried out a zillion times.
That ruling conflicts directly with Judge Leon in Washington, who called the N.S.A. program “Orwellian” in its scope. The precedent debated is that of a 1979 Supreme Court ruling, Smith v. Maryland, saying that there is no expectation of privacy if information is disclosed to a third party.
Judge Leon says that ruling is no longer applicable in today’s electronic society while Judge Pauley says it is not for him to anticipate changes in the Supreme Court’s position. And that’s where this issue seems to be heading.
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