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-...
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.
There are a few things in this post that are widely off the mark, so much so that is actually unhinges the debate.
The first is that Alito is actually far better than Roberts on privacy rights [1]. Specifically, Alito supports a mosaic theory of the 4th amendment [2] that looks at "whether the government conduct taken over time collects an amount of information that is somehow surprising or unexpected". Alito is actually one of the best hopes for progressive 4th amendment jurisprudence, yet your characterization of him is exactly the opposite!
The second is that blind deference it is not the position of Scalia (though he certainly does support deference to the executive branch when such deference is allowed by law). He is an originalist [3] who faithfully executes that algorithm when he renders his decisions. Just because you don't agree with his point of view doesn't mean he's blindly backing national security agencies. In this situation, Scalia would tell you that what is being done is allowed by law and that Congress can stop it at any time through legislation, i.e. "garbage law in, garbage decision out". He thinks, quite sensibly sometimes, that it is the executive branch's job to deal with national security issues and such issues only become his concern when they violate the law. He is a very capable, if sometimes misguided, jurist.
As to the fact that SCOTUS does not know much about technology, this is an oft argued position that has been thoroughly debunked. Judges have to make rulings on a wide range of technical issues that they are not experts on. This has always been the case, it's not a "wildcard", and the courts are well equipped to handle it. They bring in experts and requests briefs on the necessary subjects. In the last 10 years the Court has ruled on genes, encryption, complex medical procedures, etc. It's impossible for the justices to be experts on all of these. The best we can do is require the justices to be experts on the law and provide them with support from subject matter experts.
I have to admit Alito is the one justice I can't quite get a handle on.
In which case, flip Alito with Roberts, consign Scalia and Thomas to the non-hopes, and there you are.
2-I don't understand your critique, as this was exactly my point of stating: "a strongly written amicus brief in this situation by technology-savvy leaders could well tip the balance."
I think in this case Scalia strongly leans to that position. He himself said: “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.
That seems to indicate a certain degree of deferral to both legislative and executive branches in this matter.
As for garbage law in, garbage decision out, Scalia can't be counted on to rely on his own purported originalist thinking, lest we forget that the Voting Rights Act overwhelmingly re-approved by Congress had Section 4 knocked down by an opinion Scalia joined.
I'm aware of the formula, the historical boundaries upon which they were set, and how section 4 could be updated beyond relying on preclearance for historically discriminatory districts. I do acknowledge that the formula is flawed and Congress could do a better job (especially in extending protections to areas not designated historically discriminatory that might be now). However, my specific point on bringing that up is that Scalia can't be counted on to hold to his own originalist views, so I emphasized his deferral to other branches of government instead as the sticking point, as well as his general dismissal of the right to privacy. Any combination of these factors make him pretty hopeless on this case, regardless.
I made a mistake blindly sticking Alito in there, without considering his views on privacy. However, he does have a very strong deference to executive power that would place him in that bucket of deferring to national security agencies (and indeed probably drove his majority opinion on Clapper v. Amnesty).
"One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans."
While I have this comment thread going, I'll clarify what I meant by wildcard. I never intended to note this being a special instance for the court, but rather I wanted to emphasize how this particular forum (a hub for technology leaders) can get involved in a deep policy issue like this, and have their views be well-respected. That doesn't happen that often. It was my call to action to this forum, rather than any particular critique of the court.
I don't think its true that the supreme court doesn't understand technology. They might not buy into the ideology that technologists do, buy I think they understand the relevant facets of how it works. As I've said before, we depend on judges to arbitrate disputes related to complex insurance contracts. Technology is easy in comparison.
As for the low-tech workflow in chambers, they stick to it because it works. Email is great for dealing with a lot of information you don't read that carefully. Appellate work is the opposite of that: going over the same pair of 50 page briefs over and over or the same draft opinion a dozen times. Nothing beats paper, post its and pencils for that work flow.
That's not my opinion, it's that of Justice Kagan.
"The judges who sit on the US Supreme Court have little knowledge of Facebook, Twitter, email, or other modern capabilities, despite society's widespread use of such technology, according to Justice Elena Kagan.
“I think we’re going to have to be doing a lot of thinking about that,” she replied, adding that the judges often seek out younger clerks to assist with questions about technology. “It’s a challenge for us.”"
This is why I think there is a huge role to play for leaders in the tech field in this debate.
Well I disagree with justice Kagan. I think the Court gets the gist of what Facebook, etc, is, and I don't think there is much that is valuable about having really deep understanding of the technology.
I think technologists confuse technology with ideology. Facebook is a technology that lets your friends see messages and photos you post, like a private bulletin board. I think every Justice gets that. All the other stuff, about what sort of social role that technology should play, that's ideology and politics.
As an aside, when younger people say older people don't get technology, I think its usually a proxy for social disagreements. E.g. My mom (62) has a Facebook, and iPhone, iPad, etc. She gets how it all works. She just doesn't approve of people posting pictures of themselves in revealing outfits or airing personal business in public on Facebook, or teenagers sexting pictures on their iPhones. That's not her not understanding technology. That's her having different social views.
I do think a current justice is much more qualified to talk about how the court views and understands technology then we are...
Regardless, in this case, a well-written amicus brief from technology leaders could also shape some of the ideology that would come to play, and I think it would be respected because they would be subject experts.
It's a very cogent description of the internet as it worked in 1996. I can't read something like that, which even goes to the length of describing how the internet uses packet-switching, and conclude that judges as a group don't have a grasp of how Facebook works.
"As an aside, when younger people say older people don't get technology, I think its usually a proxy for social disagreements"
Could be, but I think to a large extent it is that older people tend to assume things that are just not true. Example: my mom asked if I would be able to communicate with her during my upcoming trip to Europe, because she was concerned that there might be "international rates" for the Internet. This is the same woman who is able to use Fedora for daily tasks and who has been using command-line ffmpeg to transcode personal videos for her various devices.
To "get technology" can mean a lot of things. It could mean knowing how to use a terminal. It could just as easily mean understanding that a desktop computer can do all the things that a TiVO can do, or that the Internet does not have any long distance fees, or that the intended use a computer is irrelevant in a conversation about the possible uses of a computer. I would not discount such poor assumptions -- hackers are repeatedly bitten in the ass by law enforcement agencies and judges who have such misconceptions.
This reminds me of my favorite anecdote in this realm. I had a close friend who, in college studied in the Beltway. He claims he was one of the interns who, at her behest, showed Congressman Clinton how one sleeps with a hooker in the back of cars in the infamous GTA series and then kills her to retake your money. Needless to say, she was not amused. [0]
Whether or not I believe the story, if I had known Congressional internships could be that fun, and I could inspire America's leaders with the great power of video games and laughter, perhaps I would have applied.
I don't think it is as simple as a liberal versus conservative. The cases you mention had specific issues (standing with Amnesty, transit safety with Skinner) and a general right to privacy is controversial (abortion) and not clearly defined. This is very different from the specific protections in the Forth Amendment and it's application to criminal evidence in particular.
It will be interesting to see what happens but I would expect a narrow decision on admissibility of evidence that says nothing about the legality of the NSA programs themselves after a long delay. Sigh...
BTW - RT is not a reliable source of information as it is a Russian propaganda operation. The linked article seems fine.
RT has an agenda just like everyone else, and accuracy is a function of that. It is quite reliable that way, but it's easier to spot the agenda than it is from the domestic propaganda sources.
While sometimes biased or inaccurate the NYT is much more reliable than RT which exists solely as a propaganda operation of the Putin administration. This is why his press secretary set it up and his government and friends fund it[1]. And regularly pushing conspiracy theories about 9/11 or global warming as well as hosting an assortment of wacko guests like Alex Jones and Lyndon LaRouche don't instill confidence in RT.
I generally agree with you on RT, but it was the first that popped up with regards to the technology quote.
I also agree that it's not as simple as liberal v conservative, but given the liberal bloc tends to vote together on issues like this---and many issues, I thought it was the easiest way to frame it. If people have more details to add, I'd be glad to have that be part of the discussion. I'm not a professional SCOTUS-tracker, and by no means claim to be one: just a hobby of mine. I wanted to start a discussion though, and hopefully some action with what I do know about the situation.
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."
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.
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.
This could be one of the most important rulings in history. It will define whether or not the country is actually run by the Constitution or not, as it can clearly be read.
If it goes the wrong way (as I, and anyone else with a halfway decent grasp of English, reads it), it could set the stage for a future MAJOR shift in government. That, on top of the MASSIVELY unpopular NSA surveillance of Americans, would be a clear indicator of a runaway fascist state that the majority of Americans would absolutely not support. This sets the stage for a confrontation between those in power, seeking to maintain it, versus those who no longer willingly give them that power.
I also don't buy that "whatever the Supreme Court decides is correct and just and lawful", otherwise you would not get these split decisions. It is clearly a political body, and this ruling is going to tell us quite a bit about who is pulling the strings.
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-...
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/