I think that the court challenges to the NSA meta-data surveillance program are going to work out as follows. There are three key arguments. The statutory argument - the argument that the program is illegal, the Fourth Amendment argument - the argument that the program is an unreasonable search, and the First Amendment argument - the argument that the program places a chill upon the exercise of the right to freedom of association.

On the statutory front, I think the argument that the program is legal is pretty weak. However, the statue was also written in such a way that ordinary citizens are prohibited from raising statutory questions about it in court. I'm somewhat aghast that Judge Pauley saw fit to call the program legal, but he did so after saying that the ACLU had no standing to raise the issue anyway. I think higher courts will stop with the standing analysis. They will avoid a messy issue that they don't have to engage in.

On the Fourth Amendment front, I think that the courts will adopt the more traditional view of the Fourth Amendment presented in Judge Pauley's decision authorizing the surveillance program, rather than adopting the mosaic analysis that Judge Leon presented. There might be a minority dissent that embraces the mosaic approach, but that approach is just too new - it hasn't had the right amount of analysis and currency within the legal profession for the Supreme Court to use it to strike down a major government program. Furthermore, there are experts on the Fourth Amendment who have looked carefully at the mosaic approach and are advising the courts not to adopt it.

That leaves the First Amendment. I honestly believe that the First Amendment arguments against the meta-data surveillance program are stronger than the Fourth Amendment arguments. It seems clear that constant collection of data about people's associations would have a chilling effect on their exercise of their right to freedom of association. Furthermore, chilling effects are not a novel approach to First Amendment analysis, the courts have struck down laws based on chilling effects for many decades. The court need merely recognize the reality of the situation here and apply existing precedent properly in order to find that this program violates the First Amendment.

However, there are various reasons to think that this will not happen. The First Amendment issue doesn't seem to be as well understood within the legal profession and it hasn't been taken as seriously in general as I think it should. Judge Pauley wrote it off with a few paragraphs based on the idea that you can only speculate about whether or not your data will be analyzed by an NSA agent. I think that Pauley's argument is wrong - the certain and constant coll... [ Read More (0.4k in body) ]