Rapidly advancing technologies are giving the government dramatically more power to track us and peer into our lives, with “national security” often the justification for intrusive new forms of surveillance. But if these technologies lead us toward a surveillance state, it will be in part because our courts failed to play their constitutional role as a check on Executive Branch power.
Technology has been outpacing the law for decades and, unfortunately, the courts have too often been absent from fundamental decisions about the appropriate limits on the government’s surveillance powers. This week, the Supreme Court turned away a critical chance to change that.
On Tuesday, the Supreme Court refused to take a case, Wikimedia Foundation v. NSA, that challenged a sweeping type of Internet surveillance conducted by the National Security Agency. Under this program, the NSA systematically searches the contents of Internet traffic entering and leaving the United States.
Many of these communications involve Americans—who may be exchanging messages with family and friends overseas or just browsing the Web—yet this digital dragnet operates without any of the bedrock protections against government spying typically afforded by the Constitution. The ACLU, where I work, and the Knight First Amendment Institute represented Wikimedia in its lawsuit challenging this program, called “upstream” surveillance.
The NSA says its devices are scanning for communications associated with hundreds of thousands of foreigners, but these devices could be reprogrammed to search our private messages for any keywords the government deems suspicious. They could scan our e-mails and chats for words associated with political or protest movements, or the webpages and news sites we visit for those the government considers purveyors of disinformation. This capability has never existed before, practically or legally. In the past, the government could not open and read every letter sent through the mail to find those that contain certain words or phrases. Like facial recognition systems, this kind of surveillance infrastructure has been called “turnkey tyranny”—once deployed, it can easily be used for draconian purposes.
Upstream surveillance has operated for more than 20 years, but no public court has ever ruled on whether it is constitutional. Instead, the courts have repeatedly dismissed lawsuits asking judges to decide whether the warrantless mass surveillance of Internet communications complies with the Fourth Amendment. They have often done so citing “state secrets,” despite numerous government disclosures about the breadth and operation of upstream surveillance and other programs. Likewise, in criminal cases, the courts have allowed the government to hide its surveillance tools behind exaggerated secrecy claims despite the due process rights of defendants and the need to ensure that the evidence used in prosecutions is obtained legally.
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The courts have not always taken this back seat role. Fifty years ago, the Supreme Court decided a watershed case for surveillance protections known as the “Keith Case”—named for the renowned trial judge, Damon Keith, whose ruling prompted the Supreme Court’s involvement. The defendants were accused of bombing a CIA office in Ann Arbor, Mich., and the government sought to use wiretap recordings it had clandestinely obtained without court approval. When challenged, the government said it didn’t need a warrant when spying for national security purposes.
The Supreme Court took up the case and rejected the government’s claims that domestic security matters were too complex or sensitive for the courts. It recognized that surveillance, especially for national security purposes, threatens Americans’ privacy, free expression, and political dissent. And it held that the warrant process required by the Constitution was the best way to ensure that electronic searches were narrowly constrained and subject to independent review by judges.
The 1972 Keith decision followed a string of groundbreaking Supreme Court decisions on wiretapping and surveillance in the 1960s. These cases recognized the immense power new technologies put in the hands of the government, and they applied long-standing protections against unreasonable searches to ensure that agents could not listen in on people’s private conversations without first showing probable cause to a judge.
These decisions were important not only for the constitutional ground rules they established for new technologies, but also because they prompted Congress to act. The wiretapping cases of the 1960s created momentum for Congress to pass the Wiretap Act in 1968, which established stronger procedures for courts to oversee the novel surveillance tools of that era.
Similarly, six years after the Keith decision, Congress passed the Foreign Intelligence Surveillance Act, enacting reforms and creating a secret intelligence court to oversee wiretaps related to national security. That court labored mostly out of view for decades, approving individual wiretaps of suspected foreign agents until 9/11.
In the years since 2001, the government has vastly expanded its surveillance apparatus, using national security as a justification. Yet the Supreme Court has turned aside case after case seeking its intervention to safeguard Americans’ rights. The intelligence court has sometimes weighed in, but it operates in secret, often hears only from the government, and lacks the authority of the Supreme Court to set precedent for other courts around the country.
The country’s highest court should not be absent from these debates. In our system of checks and balances, the Supreme Court is uniquely positioned to review and rule on the government’s national security claims. Its political independence and authority give it room to reject Executive Branch fearmongering and defend the principles enshrined in the Constitution, setting a baseline for Congress to legislate. Today, technological advances and the government’s appetite for our data have far outpaced Congress’s laws addressing surveillance in the Internet age. Only the Supreme Court can definitively resolve the questions about the breadth of these digital dragnets and their increasingly common use in domestic investigations of Americans.
From the systematic scanning of Internet traffic to new artificial intelligence tools, we are facing a massive expansion of government surveillance power. It’s past time that the court reprised its vital role in Keith and other surveillance cases. As the Supreme Court recognized then, given the power and temptation of these spying tools, there is no substitute for independent scrutiny by judges.
The ACLU represented the Wikimedia Foundation together with cocounsel at the Knight First Amendment Institute at Columbia University and Cooley LLP.
