We now have two district court rulings on the legality and constitutionality of the NSA meta-data surveillance program. One decision, from Judge Leon, concludes that the program is likely unconstitutional, and the other decision, from Judge Pauley, concludes that the program is lawful and is not unconstitutional. Thus the stage has been set for a debate at higher levels of the court system.

This debate has thus far focused primarily on the Fourth Amendment questions raised by this surveillance program, as well as the statutory questions. On the Fourth Amendment front, Judge Pauley relies on a traditional interpretation of Smith v. Maryland, holding that the government can obtain your phone records, without probable cause or a warrant. Judge Leon presents a newer perspective that the broad scope of this NSA meta-data surveillance program makes it an unreasonable search even though a search of a more limited scope might be reasonable. On the whole, Judge Pauley's approach is more in line with the way that courts have addressed these Fourth Amendment questions in the past, and there are strong arguments that the courts should stick to this traditional approach, such as those made by Orin Kerr.

Unfortunately, the First Amendment issues seem to be a secondary concern in this debate. Judge Leon didn't address them. Judge Pauley spent a few paragraphs on them in his decision. However, numerous commentators on Pauley's ruling have skipped over that section. For example, Benjamin Wittes didn't include the First Amendment as a "key issue" in his blog post about Judge Pauley's ruling.

I think that the First Amendment issues deserve closer consideration. A program that collects telecom metadata is a program that collects information about a person's associations. We have a right to freedom of association, and that right is obviously impacted on some level by government surveillance of it's exercise. Any desire or expectation that we have that our telecom meta-data should remain private must stem from a desire to be able to exercise our right to freedom of association without government scrutiny. (See Freedom of Association in a Networked World: First Amendment Regulation of Relational Surveillance by Katherine J. Strandburg, NYU)

Judge Pauley dismisses the First Amendment concerns with this program for two reasons, neither of which I find completely persuasive. The first reason is the principle that the First Amendment does not prohibit the government from performing searches that are considered reasonable under the Fourth Amendment. The idea that the framework of the Fourth Amendment provides adequate protection against the impact that searches can have on First Amendment rights is a decent rule o... [ Read More (0.8k in body) ]