The decision today by Judge William H. Pauley III of the U.S. District Court for the Southern District of New York — which upheld the NSA’s metadata program — is far better than the recent ruling by Judge Richard Leon of the D.C. Federal District Court holding the program unconstitutional(which I addressed here).
Unlike Judge Leon’s decision, the New York decision does not attempt to overrule the Supreme Court’s previous cases on search and seizure. As I’ve noted before, the Court held In Smith vs. Maryland that phone calling records were not protected by the Fourth Amendment because the individual had handed over the data to a third party (the phone company). If they are unprotected by the Fourth Amendment, law enforcement and national security agencies do not need a warrant to collect and search the data.
Judge Pauley did his duty and obeyed Smith, while Judge Leon tried to escape it. It is up to the Supreme Court, not a trial judge, to decide whether to overrule Smith. But the conflicting decisions (unless the D.C. Circuit overrules Judge Leon) seems guaranteed to send the issue to the Supreme Court for the last word.