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NSA Surveillance: Klayman v Obama, Smith v. Maryland

Neal Katyal, Former Acting Solicitor General of the United States in conversation with Jeffrey Rosen of the National Constitution Center.

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Video transcript

i'm jeffrey rosen the president of the National Constitution Center and i'm sitting here with neil cat yowl former acting Solicitor General of the United States we're here to talk about the Supreme Court privacy and technology we have just one last case to discuss it hasn't yet come before the Supreme Court but Justice Antonin Scalia says that he thinks it will and that has to do with the constitutionality of NSA surveillance the lower courts are divided about this Judge Richard Leon in Washington DC has struck down NSA surveillance of our so-called telephone metadata that is the telephone numbers that we dial is a violation of the Fourth Amendment what is what is his argument well judge Leon is right now in the kind of minority I think they're been 16 different judges that are ruled on this and every case has gone the other way but as Leon has written an opinion that says that when the government collects telephone metadata that it's not the content of the information but rather the numbers that someone is calling that that violates the Constitution and the government has responded by saying nope it's not the content it's just the numbers and those numbers have been voluntarily turned over effectively to your telephone company every time you dial it and so you've lost your expectation of privacy because you've picked up the phone knowing that the phone company knows exactly who you're calling and once you've lost that expectation of privacy the government and most of these courts have said that's it that's game over you don't have the privacy right again you know they say maybe there should be a policy limits on this political limits or something like that but it's not something that the Constitution governs we already discussed that case Smith versus Maryland is that the central case and is the government relying on this idea that on Smith versus Maryland to say you have no expectation of privacy in your phone numbers I believe that the government is relying on that kind of concept of Smith versus Maryland they have other arguments too including of course the fact that Congress has authorized this program in the like and has done so in the context of not simple law enforcement but rather national security information information that the government has said can be vital to solving terrorist crimes and they point to for example the fact that one of the nine eleven hijackers was living in San Diego and the government was hamstrung in getting information about that person without this telephone metadata program the counter-argument of course is that the White House commissioned the bipartisan Commission set up to investigate the program found that the surveillance had not stopped a single terrorist attack this is a good note to close the Supreme Court of course might reconsider Smith versus Maryland justice Sotomayor has said that it should and in the cell phone case all nine justices refused to apply Smith to a cell phone search obviously we can't predict what the court will do but how what sort of thought process will the court go through as the various justices attempt to translate the Fourth Amendment into a digital age as they consider a case like NSA surveillance yeah so I think the court is we started it does take a more kind of wait-and-see attitude to go with slow attitude because they're worried about what they don't know when you think about NSA surveillance you've got two unknowns you've got the technological unknowns the complexities of the telephone metadata program which are really intricate and hard but you also have the threat of terrorism and how likely it is and what's likely to stop it and the courts going to be uncomfortable of both of those realms and so that's why I think it's going to take a while for the US Supreme Court to rule on this issue and certainly a long while before they rule definitively I think the court feels that a lot of these things are best handled through political oversight in political debate and indeed conversations Jeff like the one you and I are having that can educate the people and can try and change policy not through that kind of sometimes heavy-handed mechanism of the courts but rather through the more supple dynamic legislative process well Neil has been a wonderful constitutional conversation thank you so much for joining me on behalf of the National Constitution Center and the Aspen Institute I'm Jeffrey Rosen