Judge Scalia Suggests The Supreme Court May Be Asked To Determine Constitutionality Of Metadata Program

from the might-allow-terrorism-to-trump-the-Constitution dept

Tue, Mar 25th 2014 3:12am — Tim Cushing

The US Supreme Court has yet to take a case that directly challenges the NSA's domestic surveillance programs, having turned down EPIC's turnstile-jumping attempt to bring the bulk collection to the court's attention back in November. More recently, it also declined to grant standing to a case pursued by the Center for Constitutional Rights challenging the legality of Bush-era surveillance programs.

But in a talk given at Brooklyn Law School last Friday, visiting Supreme Court Justice Antonin Scalia dropped hints that the telephone metadata program's constitutionality may be put in the hands of the Supreme Court.

Mr. Napolitano then asked if mass surveillance of cellphones and emails would be prohibited by the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” Many of the National Security Agency’s controversial surveillance programs were prominently exposed last year by Edward Snowden, a former security contracted who leaked sensitive documents revealing the U.S. government’s wide collection of digital data.

“You’re getting into the NSA stuff, right?” Mr. Scalia remarked–one of many snarky, laughter-drawing lines he issued throughout the evening. “This may come before the court. And I don’t want to get myself recused.” But Mr. Scalia nevertheless directly said he didn’t feel “conversations” were part of the “persons, houses, papers and effects” covered by the Fourth Amendment.

If this program does end up in front of the Court, it appears Scalia will be casting his lot with the government and its expansive reading of the Third Party Doctrine. He also suggested the Supreme Court wasn't up to the task, albeit based on severely backwards logic.

"The Supreme Court doesn't know diddly about the nature and extent of the threat," Scalia said. Later on, he added, "It's truly stupid that my court is going to be the last word on it."

Why Scalia feels the "nature and extent of the threat" has any bearing on the program's adherence to the Constitution is beyond me, and his apparent willingness to defer to the government's justifications for domestic spying is troubling. This argument is on par with the City of New York arguing for the stop-and-frisk program because it was useful in fighting crime, an argument the presiding judge dismissed as irrelevant to the issue at hand: the constitutionality of the program itself.

No doubt the Supreme Court will get plenty of chances to hear the government discuss the nature and extent of the terrorist threat. But it needs to keep in mind that it's ruling on the constitutionality, not whether the ends justify the means.

This peculiar statement is also troubling in light of Scalia's earlier comments that same night, where he pointed out the dangers of originalism, and reinterpreting the Constitution in light of technological advances.

“It’s the freedom of speech. It doesn’t matter whether you’re speaking in semaphore or a cellphone or any type of modern technology. You apply the same First Amendment principals to the new technology that you applied to the old. And the same for reasonable searches and seizures.”

If Scalia's going to argue that the times may change but the Constitution doesn't, then he needs to be consistent. Just because a threat that was minimal before September 2001 is now viewed as all-encompassing by the government should have no bearing on whether the Supreme Court is capable of issuing an opinion on the constitutionality of the NSA's domestic surveillance.

On the plus side, a person in the audience raised a question that may cause Scalia to reconsider his strict definition of what the Fourth Amendment covers.

When Mr. Scalia later took questions from audience members, a law student surprised the self-confident justice by pressing him on whether personal computer data–not conversations–should be protected. “Do you believe that data within a computer would be too broad of a construction of the word ‘effects’ under the Fourth Amendment?” the student inquired.

“Mmm! Mmm!” Mr. Scalia exclaimed to himself, clearly impressed with the line of argument but cautious about weighing in on a topic he expects to come up before the U.S. Supreme Court.

“I better not answer that,” he added whimsically. “That’s something that may well come up. It’s a really good question.”

So, that's a bit more promising. And Scalia is just one of nine justices. With two judges having issued contrary opinions on the Section 215 program, it may be the Court's responsibility to sort this out. Of course, this is just one of the NSA's programs with constitutional implications, and it's one that looks to be severely scaled back if not sacrificed completely to keep other, more intrusive programs free from additional scrutiny.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, antonin scalia, bulk metadata collection, nsa, section 215, supreme court

24 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Ninja (profile), 25 Mar 2014 @ 3:21am

I think it's past time the Supreme Court took the matter into their own hands considering the Constitution is the highest legal document in the land and there are several calls that it is being regularly violated by the Executive.
[ link to this | view in thread ]
Violynne (profile), 25 Mar 2014 @ 3:38am

Oh shit. The 4th Amendment one has many more commas in it.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2014 @ 3:47am

Antonin Scalia
Scalia is cut from the same cloth of 'activist judges' that he decries.

As for the original article, I can only imagine what sort of a comedy goldmine the debate was between Scalia and Andrew 'Civil War Revisionist' Napolitano
[ link to this | view in thread ]
truth, 25 Mar 2014 @ 3:50am

those boxes...
Why do people make these little boxes in there heads and accept that that is there life? Its basically death by mental blocking! We can't make sense of the real world so we make out own comfortable bubbles and say that's how its supposed to be.

Hell people are scared of freedom today so what hope do we have!

Sheeple, all of you!
[ link to this | view in thread ]
That One Guy (profile), 25 Mar 2014 @ 4:23am

Re:
The problem is, when they haven't made a ruling on it, people can always think 'Well it's bad, but when the SC finally steps in the government will certainly be brought up short, and slapped down for their actions', so you've got some hope there.

However, if his mindset is shared by the majority of other SC judges, it would seem that they consider the Constitution as less important than 'protecting the country from terrorism(Because terrorists!)', which does not seem to bode well for the already battered and besieged document.

I agree that it's way past time for them to deal with the issue, but either way it goes, it's likely to be very messy, with either the public being told once and for all that those pesky 'Rights' of theirs when it comes to privacy and their information are now 'Privileges', and ones that can be revoked at will by the government, or the government told that the rights of the people are of higher import than 'protecting' the country against the phantom threat of 'terrorism', which is likely to make some very powerful people, who have shown that they have almost no restraint and very little tolerance for being told 'no', all sorts of angry.

Still, much like surgery, it may be messy, but it needs to be done, so here's hoping it gets dealt with soon.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2014 @ 4:34am

He's right
�It�s the freedom of speech. It doesn�t matter whether you�re speaking in semaphore or a cellphone or any type of modern technology. You apply the same First Amendment principals to the new technology that you applied to the old. And the same for reasonable searches and seizures.�

The third party doctrine was wrong when it was created and it's still wrong today.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2014 @ 4:47am

"But it needs to keep in mind that it's ruling on the constitutionality...

I believe it fair to say that Justice Scalia well understands his and this fellow Justices' role as members of the Supreme Court.

The question posed by a member of the audience concerning "effects" is a very fair one, and people here should take note that Scalia concurred. Yes, he tends to exhibit strict constructionist approaches to constitutional interpretation, but to suggest that this might somehow predispose him to rule the program as meeting precedential tests for deciding in favor of the government is to fundamentally misunderstand his judicial philosophy as reflected in his certainly hundreds of court opinions.
[ link to this | view in thread ]
Pixelation, 25 Mar 2014 @ 7:13am

Did anyone ask Scalia if the Metadata program violates the Wiretap Act?
[ link to this | view in thread ]
Mike Masnick (profile), 25 Mar 2014 @ 7:25am

Re:
Yes, he tends to exhibit strict constructionist approaches to constitutional interpretation, but to suggest that this might somehow predispose him to rule the program as meeting precedential tests for deciding in favor of the government is to fundamentally misunderstand his judicial philosophy as reflected in his certainly hundreds of court opinions.

Except, as Tim clearly noted above, when he suddenly think "the nature of the threat" trumps the Constitution.

Why do you ignore that?
[ link to this | view in thread ]
nasch (profile), 25 Mar 2014 @ 7:47am

Re:
I think it's past time the Supreme Court took the matter into their own hands

They can only hear cases that are appealed to them.
[ link to this | view in thread ]
kenichi tanaka (profile), 25 Mar 2014 @ 8:32am

What's everyone complaining about? We haven't had the protection of the Fourth Amendment since September 11th, 2001. Our government, who are actually the employees of every American Taxpayer, don't feel that the people should be protected by the U.S. Constitution.

I'm shocked that King Barrack Obama hasn't abolished the U.S. Constitution, the Bill of Rights, the Justice System, the U.S. Congress or the U.S. Supreme Court. After all, we live in the United States of Obama.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2014 @ 8:34am

Re: Re:
It is a misreading of his comment, and a casual one at that in a multi-party conversation, that "the nature of the threat" trumps the Constitution.
[ link to this | view in thread ]
John Fenderson (profile), 25 Mar 2014 @ 8:53am

Re: those boxes...
"Why don't you stand up and be free?" said the cow to the sheep.
[ link to this | view in thread ]
nasch (profile), 25 Mar 2014 @ 8:53am

Re: Re: Re:
It is a misreading of his comment, and a casual one at that in a multi-party conversation, that "the nature of the threat" trumps the Constitution.

He indicated that it might be relevant in a decision, which means he thinks either A) the court could find the program unconstitutional even if it doesn't violate the constitution but there isn't much of a threat, or B) they might find it constitutional even if it does violate the constitution but there is a very severe threat. Both of those positions are nonsensical and very disturbing for a Supreme Court justice to hold. The best we can hope for is that he hadn't thought it through and would not actually rule that way.
[ link to this | view in thread ]
John Fenderson (profile), 25 Mar 2014 @ 8:56am

Re: Re: Re:
What he said was that the nature of the threat was a factor to be considered by the Supreme Court. While he didn't say that it should trump the Constitution, that he even thinks it's a factor in determining Constitutionality (the only question the SC is supposed to consider) is pretty chilling.
[ link to this | view in thread ]
John Fenderson (profile), 25 Mar 2014 @ 8:59am

Re:
Your hyperbole takes your point too far. The erosion of our nation is a team effort. Obama has his hands dirty, certainly, but you're letting the others whose hands are no cleaner completely off the hook: the other two branches of government, major corporations, both major political parties, etc.

Don't let your hatred blind you to threats.
[ link to this | view in thread ]
PRMan, 25 Mar 2014 @ 9:05am

Re: Re:
The President and Congress give themselves new powers all the time. Why not the SC?
[ link to this | view in thread ]
avideogameplayer, 25 Mar 2014 @ 9:10am

EVEN if the NSA activities are RULED unconstitutional, there's no guarantee that these programs will be shut down...

And also no guarantee that anyone will be able to fight it.

After all, you don't know your privacy is violated if they don't tell you...
[ link to this | view in thread ]
Coyne Tibbets (profile), 25 Mar 2014 @ 9:37am

Dear Justice Scalia
I understand the Court knows nothing of the threat.

But the Court is supposed to know "diddly" about the Constitution; and is supposed to make the executive and legislative branches provide more justification for breaching it than, "Because we gotta!"

So how about doing your job, and making the snoops explain why they think every citizen needs daily intrusion into their lives, to be safe.

Just for fun, I'd suggest you make them explain it in words of five letters or less; on threat of a summary adverse ruling.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 25 Mar 2014 @ 10:48am

Tortured
Scalia = Tortured interpretation of the simplest of words and phrases to fit whatever Narnian fantasy he conjures on any given day.
[ link to this | view in thread ]
Killer_Tofu (profile), 25 Mar 2014 @ 11:24am

Re: Re:
However, if his mindset is shared by the majority of other SC judges, it would seem that they consider the Constitution as less important than 'protecting the country from terrorism(Because terrorists!)', which does not seem to bode well for the already battered and besieged document.

If the founding principles of this nation are violated all of the time through metadata collection, and the court allows it, then the US isn't a country really worth protecting anyways since it no longer stands for anything. Sort of a catch 22.
[ link to this | view in thread ]
Anonymous Coward, 25 Mar 2014 @ 2:26pm

well that didn't take long to sort out, did it?
[ link to this | view in thread ]
Lurker Keith, 25 Mar 2014 @ 6:17pm

The US is not The Galactic Republic
I know people like to believe otherwise, but Obama is not, & cannot be given the emergency powers of, Chancellor Palpatine.
[ link to this | view in thread ]
rahul, 4 Oct 2014 @ 4:17am

judges is feuding
Posner lamented “He’s (Scalia) excitable and prone to anger.” The book review of “The Incoherence of Antonin Scalia,” which was published in the New Republic ignited such reaction. He also told Cohen that the magazine’s editor picked the “adversarial” title without his consent, although he took responsibility for it.
[ link to this | view in thread ]