Contrasting rulings could take the NSA to the Supreme Court

December 29, 2013 at 12:00 AM EDT
On December 27, 2013 a federal judge ruled that the government's collection of phone records is constitutional. This, in contrast to another federal judge's ruling just 11 days earlier that said it likely wasn't. The case ultimately might be headed to the Supreme Court. The New York Times' Adam Liptak on what might come next.
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HARI SREENIVASAN: We wanna turn now to an important story that broke late Friday, a federal judge’s ruling that the collection of phone records is constitutional. This in contrast to another federal judge’s ruling just a few days earlier that said it likely wasn’t. The case ultimately might be headed to the Supreme Court. For more about the timing of all of this and about what constitutional issues might determine the outcome of the case, we’re  joined now from Washington by Adam Liptak. He’s the Supreme Court reporter for the New York Times.

So the judges couldn’t have disagreed more on more things in these rulings. So, let’s first start about the disagreement on the whether or not this government program to capture data from out cellphone records even worked.

ADAM LIPTAK: They were far apart on every part of this case. On the facts, the most recent judge, the one in New York on Friday, said that this program, this NSA program that collects records could have prevented 9/11 and he seemed persuaded by several other instances in which the government asserts the program made a difference in preventing terrorist attacks.

HARI SREENIVASAN: Well let’s talk a little about the constitutionality question underneath. You know, what’s interesting is the most recent judge said that we have a fundamental right but not an absolute right to privacy and that starts to look at the unreasonable search and seizures and the fourth amendment.

ADAM LIPTAK: Right. The constitutional question starts with, ‘do we have a reasonable expectation of privacy in information we turn over to third parties like phone companies. The Supreme Court back in 1979, in a very different era said we do not and therefore the fourth amendment doesn’t get implicated. The judge two weeks ago in Washington said that 1979 decision doesn’t make any sense in the modern age of smartphones and big data and the ability to put together a whole mosaic of information about our private lives. The new judge said listen the Supreme Court said third part data is not protected and I’m not gonna go beyond what the Supreme Court says.

HARI SREENIVASAN: And so what happens next? I mean is this likely where two judges of this sort disagree, are there other cases pending? Eventually does the Supreme Court decide to hear it?

So there are several other cases pending. These two will take the lead. They’ll go up to federal appeals courts in New York and Washington. If they disagree it almost surely goes to the Supreme Court and if any appeals court strikes down a major national security agency program the Supreme Court is very likely to take it. But there’s another scenario too, which is that the Washington decision striking down the program starts to look like an outlier and if all the appeals courts say no, it’s ok, then maybe Supreme Court stays out of it.

HARI SREENIVASAN: And the Supreme Court is likely to do what in the terms of, they’re very very cautious about challenging previous decisions that they have made.

ADAM LIPTAK: That’s true although just in 2012 in a case involving GPS devices, five different justices, albeit incurring opinions expressed hesitation about this old rule saying that new technology might require reexamination of the idea that merely because third parties know our data, we lose an expectation of privacy in it.

HARI SREENIVASAN: So, if this issue does make it to the Supreme Court,  is there any indication on how the justices would break? Is this a liberal versus conservative issue?

ADAM LIPTAK:  If you look at it through the lens of national security the issue the answer would be yes. If you look at it through the lens of fourth amendment, more generally, the court has been scrambled, and a conservative like Justice Scalia has occasionally taken a more protective attitude toward privacy rights then some of his conservative brethren. So, it depends which lens you look at it through.

HARI SREENIVASAN: Adam Liptak from the New York Times, thanks so much.

ADAM LIPTAK: Good to be here.