June 26, 2014–If I were the National Security Agency I’d be very worried right now. Developments are accumulating that signal the end for its electronic dragnet against everyone. The spooks–and their Fearful Leader, General James Clapper–thought they had dodged the shot on eavesdropping. The public ire and diplomatic disaster triggered by the spy programs had indeed forced President Obama to order reforms, but in classic spyworld fashion the NSA seemed to be manipulating the reform efforts to secure even greater advantage. The order to divest itself of possession of citizens’ phone call data, in favor of communications companies holding the material for summon by warrant, had been cleverly redirected. Agency actions plus helpful misdirections to congressmen looking for advice on how to craft a law to reflect the new electronic monitoring regime had created a nifty synergism. Phone companies can be called upon for much more than mere call metadata, and NSA lawyers succeeded in revising the wording in the prospective law, for a definition of material serious enough to call for a search warrant, watered down to the point where just about anything would qualify. –Especially with its rubber-stamp Foreign Intelligence Surveillance “Court.”
That was yesterday. Today the spooks should be worried. This is due to the Supreme Court’s decision in the cases Riley v. California (13-132, 819c), and United States v. Wurie (13-212) decided on June 25. These were not cases that had anything directly to do with the National Security Agency. Rather they deal with privacy rights in the class of technology that is the focus of NSA spying. In both cases police departments accessed data from the cell phones of citizens stopped for other reasons and ended up with more serious charges. In the Riley case a stop for expired auto registration led to indictment for murder.
When the case was argued on April 29 of this year, the government maintained that a cellphone is not “materially different” than a wallet or purse, the same kind of pap the NSA has been using to allege that individuals have no interest in “business records” that embody their entire calling histories. Chief Justice John G. Roberts, writing for the majority in these cases, said of the government’s argument, “that is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
There are four reasons the NSA should be scared sh–l–s right now. First, this is the second time modern technology/privacy have come before the Supreme Court and the outcome is the same–decisions against expansive government interpretations of its power to intrude on citizens simply because of the form of technology involved. Next, in each instance the Supreme Court’s decision has been unanimous, 9 – 0. This is remarkable for a Court that has been divided on nearly every case. Third, it is only a matter of time until the entities involved in cases before the Court shift from police departments to intelligence agencies. In fact, just a couple of days ago courts in Oregon pronounced on a case of that sort, in which a citizen was convicted for terrorism in an FBI sting operation, induced to participate after monitoring of his cellphone. Cases like that are on their way to the Supremes.
Finally, the basic law–what the French might call a loi de cadre–that has been cited as the foundation for NSA’s dragnet expires next year if it is not renewed first. The “reform” silliness detailed at the top of this article forms part of a project to make changes in the course of re-authorizing the statute. Quite often legislators take positions on issues before Congress based on how they see the Supreme Court arrayed on the matter. The Court’s ruling in these privacy cases sends an explicit message to everyone on Capitol Hill. Smart fish will be more reluctant to bite on an NSA scheme to expand its powers while pretending to curtail them. Much more likely will be an outright repeal of this authority.