The flood of shocking revelations about the NSA resulting
from the whistleblowing of Edward Snowden will inevitably land issues
concerning the surveillance state, national security, the Fourth Amendment, and
the right to privacy before the Supreme Court. With the current makeup of the
court, this does not bode well for civil liberties. Earlier this year, in Clapper v. Amnesty
International, the Supreme Court held that the plaintiffs in the case
could not challenge the NSA’s warrantless wiretapping because they lacked
standing. They lacked standing because they could not show that they were
harmed by the program. However, the proof that a plaintiff would need to show
that he or she is affected and harmed by the NSA program is classified.
Therefore, as long as the NSA keeps this information secret, it is impossible
for anyone to sue. This alone is enough to signal to civil libertarians that
any NSA case decided in the near future is not going to end well. But, it
appears that the prospects for the right to privacy may be even worse.
Justice Antonin Scalia recently spoke before the
Northern Virginia Technology Council and told them that he believed the Court
would soon be hearing cases connected with the NSA. Justice Scalia appears to be less
than thrilled about having to hear such cases. He believes that elected
branches of government are better equipped to deal with such issues. However,
the Supreme Court opted, beginning in the 1960s, to expand its power in hearing
cases concerning the right to privacy. According
to Justice Scalia, this was not wise:
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.
Justice Scalia told
his audience that prior to cases like Katz
v. United States (1967), the Court held that there were no
constitutional constraints on wiretaps because the Court believed that the Fourth
Amendment did not apply in such cases and gave no protection at all to
conversations. Justice Scalia then lamented the fact that the Warren
Court stepped in on the issue and explained that
the Warren Court found that
“there's a generalized right of privacy that comes from penumbras and
emanations, blah blah blah, garbage.” This does not sound like a jurist who
believes in the right to privacy.
The landmark case that established the constitutional right
to privacy is Griswold
v. Connecticut (1965). In this case, the Supreme Court ruled that a Connecticut
law outlawing contraceptives was unconstitutional. In William O. Douglas’s
majority opinion, he speaks of why the constitutional right to privacy was recognized:
The foregoing cases suggest that
specific guarantees in the Bill of Rights have penumbras, formed by emanations
from those guarantees that help give them life and substance. Various
guarantees create zones of privacy. The right of association contained in the
penumbra of the First Amendment is one, as we have seen. The Third Amendment in
its prohibition against the quartering of soldiers “in any house” in time of
peace without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the
citizen to create a zone of privacy which government may not force him to
surrender to his detriment. The Ninth Amendment provides: “The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
Justice Scalia, obviously, is unimpressed by this. However,
despite his ingenuity, Justice Douglas could have stopped after a quick
discussion of the Ninth Amendment. The Ninth
Amendment states: “The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.” In
other words, just because a natural right is not specifically enumerated in the
Constitution, it does not mean that the people do not possess that right in
virtue of their humanity.
One source of evidence concerning the existence of a natural
right to privacy is tort law. In 1960, legal scholar William L. Prosser documented
the right to receive damages under the common law for invasions of privacy. Four
distinct privacy torts have developed:
1. Intrusion upon seclusion or solitude, or into private
affairs;
2. Public disclosure of embarrassing private facts;
3. Publicity which places a person in a false light in the
public eye; and
4. Appropriation of name or likeness.
This provides strong support for the existence of a right to
privacy. If an individual can exert this right against his or her fellow
civilians, then he or she should also be able to exert these rights against the
government.
Furthermore, the aspects of the right to privacy which concern wiretaps
and other advanced technological forms of electronic intrusion used by the NSA,
FBI, etc., are fully encompassed by the Fourth Amendment. The Fourth
Amendment states:
The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but
upon probable cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
While the Founders did not contemplate things such as
wiretaps and other surveillance telephone lines, cellphones, the internet,
etc., they did institute the requirement that a search cannot take place
without a specific judicial warrant issued upon probable cause. While the
Supreme Court has disputed this in recent decades, this is simply an indication
that they are either not careful readers or they simply wish to create
constitutional law that does not exist.
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