Monday, May 12, 2014

NSA Legislation and Fourth Amendment Challenges

This article first appeared on The Epoch Times    

     Last week, Rep. Jim Sensenbrenner's (R-WI) USA FREEDOM Act passed in both the House Judiciary and Intelligence Committees.  The bill's passage is significant for two reasons: 1) it is the first of its kind to pass committee since both the Edward Snowden leaks and President Obama's January address pledging NSA reform, and; 2) House Intelligence Committee Chairman Mike Rogers (R-MI) has introduced NSA reform legislation, which curtails the spy program less than Sensenbrenner's bill and by some estimates could "permit the metadata program to expand in an important respect: It is not limited by its terms to counterterrorism."   

     Sensenbrenner's bill moves metadata collection to private phone companies rather than having the government continue to collect it while also limiting collection to matters of counterterrorism.  Whether or not this legislation will quell public furor over bulk collection of metadata and government spying is still debatable.  Americans are concerned that the surveillance state has grown too large in recent years and has hidden behind the guise of "terrorism" in order to justify their means.  

     Currently, there is a split among lower federal courts regarding the NSA's programs with a federal district court judge in the District of Columbia ruling in Klayman v Obama that the NSA's program violates the Fourth Amendment describing it as "almost-Orwellian," and a federal district court judge in New York in ACLU v Clapper upheld the organization's practices relying on previous Fourth Amendment Supreme Court precedent.

     Ultimately, these challenges are most likely going to reach the Supreme Court.  In fact, Mr. Klayman has already appealed to the Supreme Court for an expedited ruling on his case because the district court judge stayed his decision.  Mr. Klayman believed his rights were still being infringed upon and that the appeals process would be too lengthy.  The Supreme Court denied his appeal forcing it to go through the standard appeal process.  What implications does this have on pending legislation and what can be inferred from previous and pending Fourth Amendment cases heard during the Roberts Court recently?

     Most recently, in a short twenty-page decision, which received very little attention, Justice Scalia sided with three of the liberal justices in a strange 5-4 split in Navarette v. California.  This case examined whether a police search and seizure of thirty pounds of marijuana was Constitutional under the Fourth Amendment.  In short, an anonymous tip came from a driver who stated that they had been run off the road by the plaintiffs.  The police then followed a pick-up truck matching the license plate called in by the tipster and pulled them over.  Upon pulling the plaintiffs over, the police smelled marijuana and discovered the plaintiffs where carrying over thirty pounds of the drug.  

     Justice Scalia, an avid defender of the Fourth Amendment, in a scathing dissent wrote, "The stop required suspicion of an ongoing crime, not merely suspicion of having run someone off the road earlier. And driving while being a careless or reckless person, unlike driving while being a drunk person, is not an ongoing crime."  Scalia closed his opinion by firmly asserting, "After today’s opinion all of us on the road, and not just drug dealers, are at risk of having our freedom of movement curtailed on suspicion of drunkenness, based upon a phone tip, true or false, of a single instance of careless driving."  For Scalia, an anonymous tip is not enough evidence to warrant such an intrusive act especially after police had followed the plaintiffs for five minutes and the plaintiff's "driving was irreproachable."

     The Court recently heard oral arguments in two cases involving cell phones and how far law enforcement officers can go in searching these devices once one has been arrested.  Under existing law and practice, law enforcement officers have been able to search one's items on their person if arrested for safety reasons.  Such items included pieces of paper (and its contents), drugs, or weapons.  Typically, this information could have been used against the one arrested and/or used to prevent future crimes such as drug deals.  With the advent of new technology however, one's private life can be stored all in one device, which can be carried on their person.  Justice Scalia questioned last week that "If someone is arrested for not wearing a seat belt...'it seems absurd that you should be able to search that person's iPhone.'"

     The other side of the coin in using recent Fourth Amendment cases as a bellwether for potential NSA challenges is the difficulty in predicting the Supreme Court in post-9/11 terrorism related cases.  This current Court has not weighed-in much on the issue of Guantanamo detainees and does not have a good record on granting habeas corpus to detainees.  This is relevant to the conversation given that on the subject of terrorism, the Court has been more of a friend than an adversary to the government in most instances.   

     Rep. Sensenbrenner's bill seeks to address Fourth Amendment issues by limiting government collection to counterterrorism purposes rather than bulk collection.  Some, such as journalist Glenn Greenwald, stated last week in a debate about state surveillance and liberty, that the government can ensure adequate security without infringing on the liberty of its citizens through typical law enforcement practices.  Industry experts disagree and lawmakers believe NSA reform can strike a balance of quelling public furor and not compromising the security of Americans.  Marty Lederman of Georgetown University Law School stated at a panel discussion recently that the Fourth Amendment cases the Supreme Court is hearing will have the largest impact going forward of any other cases this term.  

     It is important to point out that if metadata is curtailed, Mr. Klayman's suit may be moot affording him an effective victory.  If this scenario does play out, it will be interesting to see if Mr. Klayman and those who share his ideology are satisfied with the government's curtailing efforts, or if they want the government to go farther and ban metadata collection entirely.     

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