The Supreme Court’s Say on Surveillance?

Big national security news yesterday: a federal court judge has ruled that the NSA’s Section 215 metadata collection program is an unconstitutional violation of the Fourth Amendment.  TechDirt has a great wrap-up of Judge Leon’s opinion, but more than the excellent legal analysis on display, the case is one of the first big demonstrations of how the federal judiciary is being brought into the surveillance discussion post-Snowden.  The secretive structure of FISA Court, and the difficulty – if impossibility – of getting those cases into the Supreme Court or out into the sunshine made it very easy for the the courts to avoid judging the constitutionality of broad government surveillance.

Just last year in Clapper v. Amnesty International, the Supreme Court was able to side-step today’s question by holding that a group of international lawyers and journalists had no standing to challenge the FISA Amendments Act of 2008 because they could prove no harm.  The narrow majority deferred to the FISA Court’s ability to enforce the Fourth Amendment’s privacy guarantees, an assertion that has proven to be ridiculous. Snowden’s revelations have changed Clapper‘s standing equation, and this may force the Supreme Court’s hand.

After today, it appears all three branches of government may have a say in the future of the Fourth Amendment, and it seems likely they won’t be in agreement.  Involving the Third Branch in an active dialog about surveillance is essential not only because it can clarify the scope of Fourth Amendment but also because it may be in a position to break a separation of powers stalemate between Congress and the President.  In the end, the steady stream of lawsuits challenging the NSA’s activities may end up having a bigger legal impact than any congressional theatrics.

Why?  Because efforts to “restore public trust” aside, the Obama Administration appears to have no interest in placing any substantive constraints on its surveillance activities. Not only has the Administration ignored the chief recommendations of the President’s NSA review panel, but last week, executive branch officials “suggested that a congressional move to stop [bulk collection of Americans’ phone data] would not be the final word on the matter.” 

President Obama appears unwilling to change course, and as we saw during the Bush Administration, both wartime and the particular characteristics of the war on terrorism dramatically expand the President’s claim of authority.  Congress views these surveillance programs through the lens of the PATRIOT Act as statutory grants of power.  While President Obama has not been explicit about this, the Bush Administration argued that the executive has an inherent constitutional power to wiretap in the name of national security.

Regardless of whether one views surveillance as either the President’s prerogative or Congress’ will, the Constitution only permits this behavior because the Supreme Court’s own jurisprudence has fundamentally weakened the Fourth Amendment in the digital age. In order to justify the NSA’s behavior, government officials have routinely and regularly relied upon Smith v. Maryland, a 1979 Supreme Court decision that held that citizens had no expectation of privacy in phone numbers that they dial. Smith and an earlier case, United States v. Miller, which denied Fourth Amendment protection to bank records, created what has become know as the third-party doctrine to the Fourth Amendment. Basically, the Supreme Court has allowed the government to treat any public exposure of information as an effective forfeiture of one’s freedom from a government search of that information.

Of course, the Supreme Court stipulated that any “dragnet type law enforcement practices” like “twenty-four hour surveillance of any citizen” might receive heightened scrutiny under the Fourth Amendment.  This question came up in a splintered opinion about GPS-tracking last year in United States v. Jones, where the Supreme Court split three ways in holding that comprehensive, warrantless tracking violated the Fourth Amendment. All nine justices agreed that comprehensive and continuous electronic surveillance of a single American violated the Fourth Amendment, yet they couldn’t agree on a legal rationale for this.  Soon, those same justices will be presented with what to do about bulk surveillance of everyone, everywhere.

The introduction of the Supreme Court into the surveillance discussions presents three very different scenarios, each of which could dramatically change the balance of power vis-à-vis the three branches and the public’s Fourth Amendment rights.

First, Supreme Court as a tiebreaker.  Assume Congress is able to enact serious constraints on the NSA’s surveillance capabilities and the President subsequently refuses to acknowledge congressional limitations on NSA surveillance authority, the policy question before the courts will be to revisit the Youngstown Steel tripartite-analysis of Executive Power.  As we’ve seen here, Congress often tries to have it both ways by giving the President broad, if vague grants of authority to diffuse meaningful accountability among members, but if the President asserts broad national security authorities to engage in surveillance absent congressional approval, the Courts would be able to “sustain exclusive presidential control . . . only be disabling Congress from acting upon the subject.”  Over a decade removed from 9/11, even a conservative Supreme Court would be hard pressed to authorize broad presidential surveillance power in spite of congressional disapproval.  This scenario gives the Court a prime opportunity to scale back presidential power.

Second, Supreme Court upholds NSA surveillance. As a matter of current constitutional law, nothing the NSA is doing is technically unconstitutional.  According to Ben Wittes at Lawfare, there simply are not five votes on the Supreme Court “to shut down a major intelligence program that administrations of both parties have insisted represented a crucial line of defense against terrorism.”  Assuming the Court is even willing to confront the constitutional ramifications of mass surveillance, there’s the bigger concern that the justices may not “get” what the NSA is even doing.

The justices of the Supreme Court freely admit they are technological Luddites.  Judge Posner has cautioned that the judiciary has become “uncomfortable with science and technology.”  At this point, there’s the very real possibility that the Supreme Court will abdicate its duty “to say what the law is,” deferring to the technical wizardry of the intelligence community.  The Court may abhor technology, going so far as to ban video in the courtroom, but it would be disappointing if the Fourth Amendment were sacrificed on account on technological ignorance.  Indeed, if the Supreme Court upholds the sort of “dragnet practices” at place here, it will be difficult to see how the Fourth Amendment will entail anything more than a few increasingly strained, procedural safeguards.

Third, Supreme Court re-affirms the scope of the Fourth Amendment.  Jones produced a confusing ruling, but it also foretold exactly what the Court now faces.  In a prescient opinion, Justice Sotomayor observed that new technologies permit the government to collect more and more data and cost less and less to implement. She warned that this ever-increasing capacity to invade the privacy of citizens was “susceptible to abuse” and over time could “alter the relationship between citizen and government in a way that is inimical to democratic society.” She further suggested an immediate need to reevaluate how the Fourth Amendment should be used to protect the privacy of citizens from overeager government eyes. Her concurrence implicitly criticized the Court’s eagerness to suggest that society expects to trade increased convenience and security at the expense of its privacy. More important, it explained both that the Court’s understanding of what society deems a reasonable expectation of privacy and that its reliance on what has been knowing exposed is in conflict with the values behind the Fourth Amendment.

Faced with an influx of new surveillance technologies, she argued that it is now time “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Even Wittes acknowledges that Judge Leon’s opinion makes a powerful case for revisiting Smith v. Maryland, and while the Court seems split between textualists and so-called Living Constitutionalists, it seems impossible for the Supreme Court to avoid the reality that their post-Katz Fourth Amendment jurisprudence has muddied the waters.  Public concern about the NSA’s activities provides the Court with its best opportunity to readjust the contours of the Fourth Amendment, even if the individual justices appear shy about grappling with either Big Data or smart phone technologies.

I may be overstating the significance of a single District Court opinion, but this is an important case.  Certainly, the President and Congress remain in the driver seat on national security issues and surveillance authority in general, but the Courts also have an essential role to play. Their ultimate response will go a long way toward shaping how privacy under the Constitution looks moving forward.

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