Privacy SOS

Justice Kagan: Fourth Amendment and technology issues “a growth industry for the court”


Privacy advocates take heart: Justice Kagan, like Justice Sotomayor, has now publicly attested to the centrality questions at the intersection of new technologies and the Fourth Amendment will have before the court in coming decades. Speaking at the Aspen Institute with law professor and New Republic legal editor Jeffrey Rosen, Kagan

…discussed cases involving the Fourth Amendment, in which [she] and her hunting partner Scalia have found unusual judicial common ground. Scalia tends to frame resistance to government intrusion on personal liberty as a matter of property rights, with the government cast as a trespasser when, for instance, investigators unleash a drug-sniffing dog on your front porch or install a GPS tracking device on your car without your permission.
Kagan said she believes that the expectation of privacy is at least as important as Scalia’s property rights theory of the Fourth Amendment. Rosen then asked about electronic surveillance, pointing to Justice Louis Brandeis’s dissent in the 1928 Supreme Court ruling Olmstead v. United States, in which Brandeis said, “as a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.” Rosen said he knows Kagan shares his esteem for Brandeis. Would she follow the justice’s lead on electronic surveillance?
Rosen was clearly referring to the government’s recently disclosed collection of telephone and Internet data from entirely unwitting U.S. citizens. Kagan (who, remember, served in the Obama administration as solicitor general before joining the court) just as clearly knew the subtext of Rosen’s argument and avoided committing herself.
“That’s what we’re going to be dealing with over the next 10 or 20 years,” she said. “Fourth Amendment issues are a growth industry for the court.”
So, Supreme Court watchers, I think we can safely say that the justices are among those waiting eagerly to see what happens to suits challenging the government’s widespread data collection policy. [Reuters]
One of those suits is the ACLU's, with the ACLU suing on behalf of itself. The organization is a Verizon Business customer, and therefore directly impacted by the government metadata collection order published in the Guardian's NSA leaks series. The Verizon FISC order sought all customer records for a three month period, and officials have subsequently admitted that the orders are routine and affect most telecom companies.
Officials say the vast metadata collection program is authorized under a controversial section of the Patriot Act, Section 215. Senators Mark Udall and Ron Wyden, lawmakers with access to classified information about surveillance programs, have for years warned that the government was interpreting 215 in secret, in a manner that would "stun" and "anger" the public were it to learn the truth.
Thanks to Edward Snowden's disclosure to the Guardian, the public now knows at least part of that truth, and the facts may soon finally come before the high court for a judgment on their constitutionality. That means Kagan will soon have an opportunity to make crystal clear her view of these modern day writs of assistance. Do they, according to Kagan, smack of "tyranny and oppression," as Justice Brandeis believed wiretapping did? Chances are that Justice Sotomayor, who wrote a forward-looking concurring opinion in the GPS tracking case US v. Jones, will agree with the ACLU on the question of routine, mass, suspicionless surveillance.
The question is: who will join her?

© 2021 ACLU of Massachusetts.