NSA phone surveillance could be headed to the country’s highest courts

Opposing sides on the NSA’s massive phone record surveillance battle their way through federal appeals courts and possibly Supreme Court

In the Supreme Court, technology can be viewed as a necessary or unnecessary evil.  Justice Elena Kagan once said, "The justices are not necessarily the most technologically sophisticated people."

So, as the legal fight over the NSA's collection of phone records continues to move through the court system, possibly to the Supreme Court, some justices are saying they should be wary about taking on major questions of technology and privacy.

In 2010, when the court upheld a police department's unwarranted search of an officer's personal, messages on a government pager, Justice Anthony Kennedy suggested caution. He said in a statement, "The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear."

As time moves on the implications of technology are becoming increasingly relevant. In fact, constitutional protection against the eyes of government, without a judge's prior approval, is embodied in the Fourth Amendment's prohibition on unreasonable searches.  

Last month, U.S. District Judge Richard Leon of Washington ruled that the NSA's phone-records collection program fails that Fourth Amendment test and is unconstitutional. Additionally, the Obama administration has defended the program as an important tool in the fight against terrorism. On the other hand, 11 days after Leon's ruling, U.S. District Judge William Pauley III of New York declared the NSA program legal in dismissing a lawsuit filed by the American Civil Liberties Union.

Many expect the Supreme Court will have the final word on the program. Among those who think the Supreme Court will weigh in is Justice Antonin Scalia. He said the elected branches of government are better situated to balance security needs and privacy protections. But, according to Scalia, the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without approval.

"The consequence of that is that whether the NSA can do the stuff it's been doing, which used to be a question for the people, will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said.

According to Justice Samuel Alito, Congress is better situated than the court to reconcile technology and expectations of privacy. "New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade-off worthwhile," he said. "And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”


For more on data privacy, check out these articles:

Apple denies aiding NSA data collection from iPhones

Assessing the risks of private data

The Federal Trade Commission on Fraud, Deception, & Data Privacy Enforcement Actions

Contributing Author

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Amanda Ciccatelli

Amanda G. Ciccatelli is a Freelance Journalist for InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more. She earned a B.A....

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