Supreme Court Justice Antonin Scalia said Wednesday the court eventually will have to determine the legality of far-reaching National Security Agency spying programs, though he is not convinced the court is equipped to based on modern security threats.
Scalia, speaking at the Northern Virginia Technology Council, said elected officials are most qualified to discern how much personal information of Americans the NSA can collect, and under what circumstances.
“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.
Nevertheless, the Supreme Court started down that path in the 1960s, putting restrictions on wiretapping without a judge’s approval. The court held in 1967 that there were Fourth Amendment prohibitions on wiretapping conversations of Americans.
The Warren court found that “there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage,” Scalia said of the decision.
Scalia said the Constitution calls for a balance between whether a search or seizure is reasonable depending on the threat posed.
He said airport pat-downs are an example of the balance.
“That’s a terrible intrusion of privacy,” he said. “But you’re willing to do it because of the seriousness of the threat.”
After disclosures about NSA surveillance programs became public this summer via former NSA contractor Edward Snowden, the Electronic Privacy Information Center asked the high court to bar the NSA from collecting call records of millions of US customers. The court has not made a decision about hearing the case.
The court ruled in a 5-4 vote earlier this year to not hear a case challenging a 2008 warrantless wiretapping law — the FISA Amendments Act, which allows the NSA to conduct broad surveillance — based on its view that the plaintiffs did not have proper standing to contest the law. The court said the plaintiffs could not prove they were subject to the secret spying program.
“The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans’ privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches,” the American Civil Liberties Union’s Jameel Jaffer, who argued the case before the justices, said in February when the case was dismissed.
Scalia did not openly solicit his thoughts on surveillance, but was asked about it by an attendee. He said later that he was speaking about general NSA surveillance, including vast collection of phone records, when he repeatedly used the term “wiretap.”
He said tech companies should speak up and tell customers if data was illegally confiscated by the government.
“But it’s pretty hard to know that. … If it’s a governmental wiretap, presumably it’s been approved by somebody, some lawyer expert in the field who said it was OK, and you better be damn sure you’re right before you blow the cover,” he said.
A groups of US senators revealed legislation Wednesday that would curb the NSA’s mass collection of phone records and reform the Foreign Intelligence Surveillance Court, which approves NSA spying orders.