Today's Opinions, Tomorrow's Reality
By David G. Young
Washington, DC, July 1, 2014 --
The Supreme Court has taken a strong stand against digital snooping, but it is unlikely to reign in the NSA any time soon.
The Supreme Court's decision to require search warrants before examining suspects' cell phones represents a phase shift in legal thinking on digital snooping. A unanimous decision on a controversial topic like this is unusual, and suggests that government legal arguments in favor of digital searches have failed to keep up with a changing world.
In the year since exiled National Security Agency contractor Edward Snowden revealed the scope of mass spying on the public, there has been plenty of time for the consequences of mass espionage to sink in. For younger Americans whose lives have always been online, this year has brought little cultural change. But for most older Americans, like the members of the Supreme Court, the transition to a digital lifestyle is usually very much a work in progress. Having this transition be ongoing during a year of periodic revelations about NSA snooping of this world is undoubtedly influential.
Nowhere in the Riley vs. California decision is the acronym NSA mentioned -- but the writing is clearly on the wall. There are currently several cases winding their way through federal court system that could lead the Supreme Court to decide the legality of mass data collection by the NSA.2 Ruth Bader Ginsberg, appearing at the National Press Club, said that she could not answer a question about Edward Snowden or NSA collection practices because a case may one day come before the court.3 Yet in the Riley case, the justices have made clear that when a NSA case finally reaches them, government agents will be given a very skeptical hearing.
Unfortunately, this may not happen any time soon. The court moves slowly and cautiously. Sections 215 and 702 of the Patriot Act, which authorize mass NSA snooping of phone and internet data, expire in June of next year.4 The Supreme Court may be reluctant to take a case that is based on a law that may expire before it renders a decision. If the Patriot Act authority is extended next year, the Supreme Court could take a case that would ead to a decision as early as 2016. But given that 2016 is a presidential election year, it is quite possible that the court will wait even longer, waiting to see if the next president inaugurated in 2017 will continue the programs.
Three years is a long time in legal limbo.
Until the Supreme Court has its say, decisions about mass digital espionage rest with the White House. The Obama administration has shamefully sided with the spooks against the people. It has repeatedly denied mass espionage until caught red handed. His director of National Intelligence, James Clapper, lied to Congress under oath saying that the NSA does "[n]ot wittingly" collect bulk information on Americans,5 something later revealed to be false through revelations of the NSA's PRISM program that collects bulk internet traffic. (He did later clarify his comments to Congress, but only in private.) Yet the Obama administration has made no public rebuke. Not until a foreign head of state, Germany's Angela Merkel, called him out for tapping her phone, did Obama announce any changes in policy. And once he did, in January of this year, the changes were modest and limited in scope to voice calls and not the more widespread data collection of the PRISM program.6
The bottom line, unfortunately, is that the Obama administration is no friend to the Fourth Amendment to the constitution. It has repeatedly shown that it will use any justification necessary to continue mass espionage on the public. Civil libertarians must accept that this espionage to continue for the remainder of the president's term. Even though the Supreme Court has shown it is sympathetic with opponents of this espionage, it moves so cautiously in the face of unsettled law, that it is unlikely to do anything soon.
Americans hoping for earlier relief must therefore look to private industry. Google has been leading corporate efforts to encrypt all internal traffic to greatly slow down spies' consumption of public internet traffic. Of course, companies don't do this out of a high-minded belief in the Fourth Amendment. They know they are losing business for their cloud services to overseas competitors, due to assumptions that the NSA is scanning all information touching American shores. But whatever their motivations, their actions offer the best hope to protecting Americans from domestic espionage for the next few years.
For those looking for practical action against the NSA's domestic spying, the Supreme Court's Riley decision is little more than a bunch of pretty words.
Related Web Columns:
Trust Them? Really?, October 19, 2013
Liberty Isn't Privacy, June 25, 2013
1. U.S. Supreme Court, Riley v. California, June 215, 2014
3. CNN, Supreme Court Could Weigh in on NSA case, Justice Says, April 18, 2014
4. New York Times, Deal Reached on Extension of Patriot Act, May 19, 2011
6. Washington Post, Everything You Need to Know About Obama's NSA reforms, in Plain English, January 17, 2014