Supreme Court Justice Antonin Scalia expects challenges to the National Security Agency’s surveillance programs to come before the high court. But he’s not going to wait that long to let you know what he thinks.
The Associated Press reports that, while speaking to the Northern Virginia Technology Council, Scalia suggested that the Fourth Amendment protects personal items from being taken from the government, not privacy per se. Unfortunately, he complained, prior Supreme Court decisions have found “there’s a generalized right of privacy that comes from penumbras and emanations, blah blah blah, garbage.” Conservatives have taken a dim view of the concept of a constitutional right to privacy since the 1973 Roe v. Wade decision, which legalized abortion rights.
Civil liberties advocates are already challenging the NSA data collection program in court, and the AP reports that Scalia told the gathering that while he expects the Supreme Court to rule on the matter eventually, it’s an issue “best answered by the elected branches of government.” In February Scalia joined a 5-4 decision ruling that a group of activists couldn’t challenge the legality of NSA surveillance because they couldn’t prove they had been spied on.
Scalia’s implied view that say, phone conversations aren’t protected by the Fourth Amendment contravenes a 1967 Supreme Court ruling, Katz v. United States, which found that the FBI had illegally wiretapped a phone booth being used by Charles Katz to facilitate an illegal gambling operation. The high court ruled 7-1 that wiretapping Katz without a warrant violated his Fourth Amendment rights against illegal search and seizure. Only one dissenting Justice, Hugo Black, took the view that only “tangible things with size, form, and weight” were protected.
If Black’s perspective seemed anachronistic in 1967 applying to phone calls, it’s deeply weird now that so many people’s personal effects—photos, correspondence, political beliefs—exist exclusively in digital form. If Scalia is adopting Black’s view of the Constitution that he also believes that anything that isn’t a physical object can be “seized,” and so is not protected by the Fourth Amendment.
Two hundred years go the Framers of the Constitution may not have been able to imagine a world in which personal effects and correspondence, the very material the Fourth Amendment is designed to protect from the government’s prying hands and eyes, would someday exist in digital rather than physical form. But it would be surprising if they thought that technological transition obliterated a basic constitutional right. The logic of Black’s view, which Scalia appears to agree with, is that if the 13 colonies had Facebook and GMail for King George III’s agents to rifle through, the colonists would have had nothing to complain about.
Adam Serwer