Responding to a recent blog post by Jeffrey Toobin suggesting that “there is no proof of any systemic, deliberate violations of law” by the National Security Agency with its surveillance programs, Jim Harper points at Cato at Liberty to the amicus brief that he filed with Randy Barnett in In re Electronic Privacy Information Center, the challenge to the constitutionality of those programs. He contends that the Court’s 1979 decision in Smith v. Maryland, in which the Court held that the warrantless use of a pen register to record the telephone numbers dialed by a suspect did not violate the Fourth Amendment, is an “unsafe resting place” for supporters of the program, both because Smith was “decided . . . wrongly” and because “the Court is moving away from the ‘reasonable expectation of privacy’ test entirely.”
With the Justices in their summer recess, their comments during their speaking engagements often make the news. In a speech yesterday in Rhode Island, Justice Elena Kagan discussed the Justices’ technological savvy – or lack thereof. The Justice conceded that – among other things – the members of the Court “are not necessarily the most technologically sophisticated people,” who haven’t “really ‘gotten’ to email yet.” Coverage of Kagan’s speech comes from Will Oremus at Slate and Michelle R. Smith at the Huffington Post.
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