Earlier this month, Judge Leon (D.D.C.)  issued a ruling enjoining the NSA metadata program under Section 215 (and then staying his decision pending appeal), noting that the program was “likely unconstitutional.” In breaking news–over what some may have expected to be an otherwise quiet week between Christmas and New Years–Judge Pauley of the SDNY has ruled in favor of the government in ACLU v. Clapper, ruling, among other things, that the NSA telephony metadata program is constitutional under the 4th Amendment.  Contrary to Judge Leon’s opinion, Judge Pauley found that Smith v. Maryland controls:

While people may “have an entirely different relationship with telephones than they did thirty-four years ago” . . . this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating.  Telephone have far more versatility now than when Smith was decided, but this case only concerns their use as telephones.  The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata.

We are still digesting the 54-page opinion, but stay tuned, as we will likely have more to say on this development in the days ahead.