Legislature Will Probably Deal With Phone Surveillance Before the Courts

From Politico:

Judge William Pauley III’s Friday decision to dismiss an American Civil Liberties Union request for an injunction against Director of National Intelligence James Clapper buttresses the government’s contention that sweeping up data associated with nearly every call to, from, and within the United States is legal under Section 215 of the post-Sept. 11 PATRIOT Act.

. . . 

The provision in question is due to expire at the end of 2014, and supporters of the NSA’s surveillance powers will have to make arguments to fellow lawmakers — and constituents — who have more information about the program because of Edward Snowden’s national security leaks. 

. . . 

The provision is almost certain to be debated by Congress again before these cases make their way up the chain, through U.S. circuit courts, to the Supreme Court. Another major challenge to the program is pending before a federal court in San Francisco. While the high court can short-circuit the process to take up an issue more quickly, it rarely does.

I think that this is a good point that people should remember when wondering whether the split decisions on the constitutionality of section 215 will lead to a review of the law by the Supreme Court.  And as I mentioned here, it is most likely that split will need to survive appellate review before the Supreme Court decides to review it, and I have my doubts over whether Judge Leon's decision will be upheld on appeal.

Privacy advocates may criticize Judge Pauley's decision as upholding a system of mass surveillance that many think is unconstitutional.  But this decision may be what the legislature needs to push it to act.  If Judge Leon's decision that the program was unconstitutional were the only decision on the subject, then lawmakers might want to avoid changing the surveillance program, arguing that the courts will end up determining whether it is truly unconstitutional.  With Pauley's decision that the program is constitutional added to the mix, the unconstitutionality of telephonic metadata is a much less certain conclusion.

I think that legislative reform is an effective way for the law to better accommodate privacy concerns.  Legislative changes can be specifically targeted, and are not governed by the facts of a specific party's case.  Finally, I think that one of the biggest obstacles to this type of reform is an inflated expectation that the courts (and especially the Supreme Court) will determine the constitutionality of section 215.