- - Wednesday, June 25, 2014

Wednesday’s unanimous Supreme Court ruling prohibiting warrantless cellphone searches may foreshadow how justices will review and ultimately decide upcoming cases that examine the constitutionality of NSA mass surveillance programs, legal experts say.

In a stunning 9-0 decision authored by Chief Justice John G. Roberts, the court ruled in Riley v. California that the Constitution protects the vast amount of data that can be mined from a cellphone by a routine government searches, a point that experts say demonstrates how the court may approach upcoming digital age privacy lawsuits, particularly those involving the National Security Agency.

“The decision strongly suggests that the constitutionality of NSA mass surveillance will turn on whether or not such surveillance is a search,” said Nick Dranias, constitutional policy director at the Goldwater Institute, a public interest litigation group opposing federal overreach. “If it is considered a search, the court will most likely require a warrant for mass surveillance in the absence of exigent circumstance or immediate emergency.”

Although the Fourth Amendment permits law enforcement agents to conduct warrantless searches, those searches must be based on criteria involving critical circumstances such as the imminent destruction of evidence or the safety of police officers.

Civil liberties advocates such as Sen. Rand Paul and FreedomWatch attorney Larry Klayman have argued that those circumstances are nonexistent when it comes to mass surveillance and that the NSA programs do not pass constitutional muster.

Mr. Paul and Mr. Klayman are co-plaintiffs in a lawsuit filed in U.S. District Court for the District of Columbia against President Obama and several intelligence agencies challenging the constitutionality of collecting bulk records about Americans’ phone calls.

In a separate District Court case that also touched on mass surveillance issues this year, Judge Richard Leon ruled that the NSA surveillance program, because of its broad scope, most likely violates the Fourth Amendment. The Justice Department has appealed Judge Leon’s decision.

Other similar federal lawsuits have been filed in the Northern District of California and the District of Idaho. In a case brought by the American Civil Liberties Union in the Southern District of New York, a federal judge has ruled that the NSA program is constitutional. That ruling has been appealed by the ACLU.

Legal experts said the Supreme Court took a straightforward approach, issuing a clear mandate on the side of the Fourth Amendment and that it will most likely be utilized as precedent in future digital age litigation.

“Today’s Supreme Court opinion, instead of citing awkward analogies to constables and carriages, explicitly recognizes the expectation of digital privacy Americans have with regard to their cellphones,” said Elizabeth Joh, a professor of criminal procedure and police practice at the University of California-Davis School of Law. “Expect the … decision to be invoked in a number of other areas where digital privacy is being actively litigated.”

John Whitehead, president of the Rutherford Institute, a Charlottesville-based civil liberties group that filed an amicus brief in U.S. v. Wurie, a companion case to the Riley case, said the decision sends surprising signals about the justices themselves and how they may rule in the future.

“Most people on the Supreme Court are not technologically savvy; so this decision, coming out of this particular court, is a good sign that they will understand the more complex issues that are going to come from other cases involving technology and privacy,” Mr. Whitehead told The Washington Times. “With the volume of technology it’s difficult to avoid government agencies not knowing what you have on your phone or computer, but at least this is a step in the right direction.”

Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

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