Vermont Bar Journal, Vol. 40, No. 2 Spring 2014, Vol. 40, No. 1 | Page 17

District Court Opinions to Date

As of this writing no court has yet rendered an opinion as to the constitutionality of “Prism,” “Muscular,” “Boundless Informant,” or Xkeyscore,” but two district
court judges have come to two opposite
conclusions about the legality of the NSA’s
collection of bulk telephone records.
The Leon Decision9
In Klayman v. Obama et al., Judge Richard Leon, of the District Court of the District of Columbia, begins with a discussion
of  Smith v. Maryland,10  which the Foreign
Intelligence Surveillance Court (FISC) has
said “squarely control[s]” when it comes to
“[t]he production of telephone service provider metadata.”11 The Supreme Court held
that Smith had no reasonable expectation
of privacy in the numbers dialed from his
phone because he voluntarily transmitted
them to his phone company, and because
it is generally known that phone companies
keep such information in their business records.12 
Judge Leon concluded that the NSA’s
bulk records collection was a different kettle of fish. He writes, “Put simply, people in
2013 have an entirely different relationship
with phones than they did thirty-four years
ago.” He notes that records that once revealed a few tiles
now reveal an entire mosaic—a vibrant
and constantly updating picture of the
person’s life … Whereas some may as-

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sume that these cultural changes will
force people to ‘reconcile themselves’
to an ‘inevitable’ ‘diminution of privacy
that new technology entails,’ … I think it
is more likely that these trends have resulted in a greater expectation of privacy, and a recognition that society views
that expectation as reasonable.13
Judge Leon calls the program “Orwellian”14 and concludes
I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this
systematic and high-tech collection and
retention of personal data on virtually every single citizen for purposes of
querying and analyzing it without prior judicial approval. Surely, such a program infringes on “that degree of privacy” that the Founders enshrined in the
Fourth Amendment. Indeed, I have little
doubt that the author of our Constitution, James Madison, who cautioned us
to beware “the abridgement of freedom
of the people by gradual and silent encroachments by those in power,” would
be aghast.15

The Pauley Decision16

In ACLU v. Clapper, Judge William Pauley, presiding in the Southern District
for New York, came to just the opposite
conclusion concerning the NSA’s collection of bulk telephone records. Dismissing
the ACLU’s statutory claims out of hand he
wrote: 
The ACLU would never have learned
about the Section 215 order authorizing collection of telephony metadata related to its telephone num-

THE VERMONT BAR JOURNAL • SPRING 2014

bers but for the unauthorized disclosures by Edward Snowden. Congress
did not intend that targets of Section
215 orders would ever learn of them
… It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets and the
means and methods of intelligence
gathering could frustrate Congress’s
intent. To hold otherwise would spawn
mischief: recipients of orders would be
subject to section 2l5’s secrecy protocol confining challenges to the FISC,
while targets could sue in any federal
district court.17

Taking Terabytes Out of the Constitution

Hopefully Congressional testimony and
litigation will provide answers to some of
the important questions: What is collected? How is it accessed? What is being
done with it?

Judge Pauley’s position leaves one to
wonder:
1. How could millions of Americans be
considered “targets” under any conceivable surveillance scheme?;
2. How can Judge Pauley be so certain
as to congressional intent when one
of the principal authors of the Patriot Act says the NSA has misinterpreted his intent and when the Director of
the NSA, James Clapper, has famously lied to the U.S. Senate about what
the NSA is doing?18;
3. Furthermore, of what importance, if
any, is Congressional intent when the
fundamental issue is the Constitutionality of the law itself?; and
4. If Snowden’s disclosures reveal that
the executive branch is violating the
Constitution, why shouldn’t they be
considered, especially when whistleblowers such as Thomas Tamm,
Thomas Drake, and William Binney,
who tried to disclose illegal activity through the management chain,
found themselves subjected to FBI

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