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I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly

I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly applicable to the NSA's reported invasions of Americans' cell phones, indefinite collection of all Americans' call logs, and other matters. Admittedly, the Court tends to defer more to the executive branch in national security contexts than in criminal ones like this, but this opinion is ominous for some of the NSA's surveillance programs. In some places, the opinion's discussion of the inherent intrusiveness of cell phone searches reads very much like Judge Leon's rejection of the NSA's phone metadata collection program from December 2013 (http://online.wsj.com/public/resources/documents/JudgeLeonNSAopinion12162013.pdf http://online.wsj.com/public/resources/documents/JudgeLeonNS...). And it's ominous for the NSA not just because the reasoning is directly applicable to some NSA programs, it's also that all 9 Justices signed on to an opinion that is more than assertive; it is scathing and sarcastic. E.g., Justice Roberts mocks the government for calling a cell phone search 'materially indistinguishable' from a search of a wallet, purse, or address book. That is "like saying a ride on horseback is materially indistinguishable from a flight to the moon" (p. 17). This line alone would make an NSA lawyer blanch: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime... Privacy comes at a cost" (p. 25). NSA lawyers should be seriously concerned that in the criminal context, the Court unanimously announced a broad rule that the government almost always needs a warrant to search even an arrestee's cell phone - and then blithely dismissed the government's arguments about the after-effects of such a rule, saying, "Oh well, privacy comes at a cost."

danesparza 12y ago
"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.
- thucydides 12y ago
  No, the NSA can be challenged in court. Actually, both my post and the Wikipedia article you cite in your reply refer to federal suits against the NSA. In the recent past, courts would throw out NSA lawsuits because plaintiffs couldn't prove they had been personally surveilled, which left them without standing to sue. (Example: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union_v._National_Security_Agency#Sixth_Circuit_Court_of_Appeals https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...). Since Edward Snowden's revelations showed that some NSA programs target every American, that has changed. And in the future, anti-NSA plaintiffs will be able to use the Supreme Court's legal analysis of the inherent invasiveness of cell phone searches.
Shivetya 12y ago
Not really, the NSA's actions were deemed to not be a search and as such would not fall under the same reasoning used in this case. If you read this ruling about cell phones Roberts made it clear they were declaring the officer's actions to be a search, hence requiring the warrant.
- thucydides 12y ago
  No - the Supreme Court has not ruled on any of the NSA's recently disclosed programs. So they haven't had the chance to say whether they're searches. And on that threshold question of whether any NSA surveillance programs are "searches" under the meaning of the Fourth Amendment, the Supreme Court would ask if a challenged program violates American citizens' "reasonable expectation of privacy." Much in this opinion would be directly relevant to that question.

danesparza 12y ago

"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.

thucydides 12y ago
No, the NSA can be challenged in court. Actually, both my post and the Wikipedia article you cite in your reply refer to federal suits against the NSA. In the recent past, courts would throw out NSA lawsuits because plaintiffs couldn't prove they had been personally surveilled, which left them without standing to sue. (Example: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union_v._National_Security_Agency#Sixth_Circuit_Court_of_Appeals https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...). Since Edward Snowden's revelations showed that some NSA programs target every American, that has changed. And in the future, anti-NSA plaintiffs will be able to use the Supreme Court's legal analysis of the inherent invasiveness of cell phone searches.

Shivetya 12y ago

Not really, the NSA's actions were deemed to not be a search and as such would not fall under the same reasoning used in this case. If you read this ruling about cell phones Roberts made it clear they were declaring the officer's actions to be a search, hence requiring the warrant.

thucydides 12y ago
No - the Supreme Court has not ruled on any of the NSA's recently disclosed programs. So they haven't had the chance to say whether they're searches. And on that threshold question of whether any NSA surveillance programs are "searches" under the meaning of the Fourth Amendment, the Supreme Court would ask if a challenged program violates American citizens' "reasonable expectation of privacy." Much in this opinion would be directly relevant to that question.