4 ms·

Huge deal, as this will most likely set the stage for a Supreme Court ruling that will define this generation's privacy rights. The liberal justices voted as a

Huge deal, as this will most likely set the stage for a Supreme Court ruling that will define this generation's privacy rights. The liberal justices voted as a bloc together in CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL. to try to challenge the constitutionality of warrantless wiretaps, and I expect much the same from Kagan, Ginsburg, Breyer, and Sotomayor in this case. Of the conservative justices, Roberts, especially given his tendency to try to hit some home-run majority rulings for his legacy of being a "by-the-rules" arbitrator, and his pronouncement of privacy issues as being the paramount constitutional issue would be most likely to flip with the liberals. With that said, his previous defense and work on behalf of Bork, and his theory of a lack of privacy in the Constitution does leave a bad taste. Justice Kennedy unfortunately cannot be counted on when it comes to privacy issues. His majority opinion on Skinner v. Railway Labor Executives enumerating that the government could violate the privacy rights of railway workers by subjecting them to drug tests due to a "special needs" exemption where the Fourth Amendment could be ignored if it was deemed to be in the overriding interest of public safety is the basis of the NSA's metadata collection program---see: http://www.nationaljournal.com/nationalsecurity/how-justice-anthony-kennedy-helped-bring-you-the-surveillance-state-20130709 http://www.nationaljournal.com/nationalsecurity/how-justice-... He's still the second most likely to flip because Scalia, Alito, and Thomas are basically lost causes. Scalia basically called a general right to privacy in the Constitution rubbish, and it's unlikely either of the three will bend their ideological bent that the "national security agencies" know best. The votes might be there. It probably hinges on Roberts. But significant positive changes to how the American government deals with privacy issues could happen. Again, the votes might be there, which is better than never discussing the issue at all (or discussing them in dark, dank courtrooms nobody hears about). Cause for hope goes exponentially up if one of the conservative justices retires and is replaced by a young liberal justice attuned to technology much as Kagan is. If that happens, this likely scenario becomes a most likely scenario. Wildcard: The Supreme Court actually doesn't know anything or very much at all about technology. They still pass paper briefs among each other instead of email...a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance. http://rt.com/usa/supreme-court-kagan-email-758/ http://rt.com/usa/supreme-court-kagan-email-758/

clarkevans 13y ago
I don't know if I'd write off Scalia, he surprised me with Kyllo vs. U.S. when he wrote the 5-4 opinion that use of infrared camera to peer into a home without a warrant constituted an unreasonable search barred by the Fourth Amendment, citing Katz vs. United States, a case involving remote eavesdropping that defined a "subjective expectation of privacy."
- Rogerh91 13y ago
  He surprised me as well in that ruling, him and Thomas both actually. But I think they were both reading from a strict fourth amendment position of the privacy expected within a home---something that could be easily conceptualized from an originalist point of view (those legal types who always look for the exact wording of the founders). "Scalia created a "firm but also bright" line drawn by the Fourth Amendment at the "'entrance to the house'".[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called "the long view" of the Fourth Amendment." Mobile apps that use GPS to track people=brain freeze. Given his standing on Clapper v. Amnesty, I think this falls under his more general view of privacy rights...which is not great, as Scalia doesn't really acknowledge Griswold v. Connecticut when the right to privacy was first established, and he has a strong reluctance to question national security agencies on issues he doesn't seem to know very much about... “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,” Scalia said.
  - smsm42 13y ago
    Tracking movements in public is more complicated issue, because generally when you go from place to place in public, you can not say you expected this move to be private - it can be plainly seen by anybody who happens to be in the same street as you. It is very different from what happens in your home, where you can expect nobody (outside of your household) can see you. Note I'm not advocating any legal opinion here, just saying "home" case is much more obvious thing than "tracking" case. In general, US people (by means of Congress) can also put limits on the police or the NSA beyond constitutional limits, i.e. say even if the 4th amendment did not ban GPS tracking or email intercepts, we (the US people, by means of Congress) prohibit the police or NSA from doing so without judicial warrant. Unfortunately, US people seem to be unable or unwilling to elect representatives that are interested in doing so, so the only fallback remaining is the Supreme Court, which is not really the best way to solve complex cases, as they can go either way.

clarkevans 13y ago

I don't know if I'd write off Scalia, he surprised me with Kyllo vs. U.S. when he wrote the 5-4 opinion that use of infrared camera to peer into a home without a warrant constituted an unreasonable search barred by the Fourth Amendment, citing Katz vs. United States, a case involving remote eavesdropping that defined a "subjective expectation of privacy."

Rogerh91 13y ago
He surprised me as well in that ruling, him and Thomas both actually. But I think they were both reading from a strict fourth amendment position of the privacy expected within a home---something that could be easily conceptualized from an originalist point of view (those legal types who always look for the exact wording of the founders). "Scalia created a "firm but also bright" line drawn by the Fourth Amendment at the "'entrance to the house'".[1] This line is meant to protect the home from all types of warrantless surveillance and is an interpretation of what he called "the long view" of the Fourth Amendment." Mobile apps that use GPS to track people=brain freeze. Given his standing on Clapper v. Amnesty, I think this falls under his more general view of privacy rights...which is not great, as Scalia doesn't really acknowledge Griswold v. Connecticut when the right to privacy was first established, and he has a strong reluctance to question national security agencies on issues he doesn't seem to know very much about... “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,” Scalia said.
- smsm42 13y ago
  Tracking movements in public is more complicated issue, because generally when you go from place to place in public, you can not say you expected this move to be private - it can be plainly seen by anybody who happens to be in the same street as you. It is very different from what happens in your home, where you can expect nobody (outside of your household) can see you. Note I'm not advocating any legal opinion here, just saying "home" case is much more obvious thing than "tracking" case. In general, US people (by means of Congress) can also put limits on the police or the NSA beyond constitutional limits, i.e. say even if the 4th amendment did not ban GPS tracking or email intercepts, we (the US people, by means of Congress) prohibit the police or NSA from doing so without judicial warrant. Unfortunately, US people seem to be unable or unwilling to elect representatives that are interested in doing so, so the only fallback remaining is the Supreme Court, which is not really the best way to solve complex cases, as they can go either way.