A legal battle over the scope of US government surveillance took a turn in favour of the National Security Agency on Friday with a court opinion declaring that bulk collection of telephone data does not violate the constitution.

The judgement, in a case brought before a district court in New York by the American Civil Liberties Union, directly contradicts the result of a similar challenge in a Washington court last week which ruled the NSA’s bulk collection program was likely to prove unconstitutional and was “almost Orwellian” in scale.

Friday’s ruling makes it more likely that the issue will be settled by the US supreme court, although it may be overtaken by the decision of Barack Obama on whether to accept the recommendations of a White House review panel to ban the NSA from directly collecting such data.

But the ruling from Judge William Pauley, a Clinton appointee to the Southern District of New York, will provide important ammunition for those within the intelligence community urging Obama to maintain the programme.

Judge Pauley said privacy protections enshrined in the fourth amendment of the US constitution needed to be balanced against a government need to maintain a database of records to prevent future terrorist attacks. “The right to be free from searches is fundamental but not absolute,” he said. “Whether the fourth amendment protects bulk telephony metadata is ultimately a question of reasonableness.”

Pauley argued that al-Qaida’s “bold jujitsu” strategy to marry seventh century ideology with 21st century technology made it imperative that government authorities be allowed to push privacy boundaries.

“As the September 11 attacks demonstrate, the cost of missing such a threat can be horrific,” he wrote in the ruling. “Technology allowed al-Qaida to operate decentralised and plot international terrorist attacks remotely. The bulk telephony metadata collection programme represents the government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaida’s terror network.”

The ACLU case against the NSA was dismissed primarily on the grounds that bulk collection was authorised under existing laws allowing “relevant” data collection to be authorised by secret US courts… see more

source: Guardian UK