NSA mass phone surveillance is ‘lawful’, US federal judge rules

Decision comes just weeks after another judge said government’s data collection programme was probably ‘not constitutional’

The NSA’s programme of mass phone data collection is “controversial but lawful”, according to a ruling from a federal judge in the US.

Ruling in the case brought against the government by the American Civil Liberties Union (ACLU), US District Judge William H Pauley III issued a 53-page court opinion declaring the surveillance is a “counter-punch” to terrorism.

Judge Pauley’s ruling yesterday comes just weeks after fellow US District Judge Richard Leon said that wide scale phone tapping was “likely not constitutional”, violating a ban on unreasonable search.

“The question for this court is whether the government's bulk telephony metadata program is lawful,” wrote Judge Pauley. “This court finds it is.”

Given the conflict on the issue within the courts, ACLU lawyers said they would be taking their case to an appeal in Manhattan. “This mass call tracking program constitutes a serious threat to Americans' privacy and we think Judge Pauley is wrong in concluding otherwise,” said Brett Max Kaufman, an attorney with the ACLU's National Security Project.

Explaining his decision, Judge Pauley said the 9/11 terrorist attacks showed the government could not afford to miss any threat.

“This blunt tool only works because it collects everything,” the judge said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”

Judge Pauley nonetheless accepted that such a programme, if unchecked, “imperils the civil liberties of every citizen” and said he was aware of debate surrounding the subject across the nation, in Congress and at the White House.

The ACLU sued the government earlier this year in the wake of security leaks from the former NSA contractor Edward Snowden, and Judge Pauley said that the source of the revelations played a part in his decision.

“It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets — including the means and methods of intelligence gathering — could frustrate Congress's intent. To hold otherwise would spawn mischief,” he said.

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