The Deep State: The Fall of the Constitution and the Rise of a Shadow Government by Mike Lofgren (Audiobook)
From chapter 13:
Will the Supreme Court Rein In the Surveillance State?
A handful of senators does not a revolution make, but there are some indications that across the street from the Capitol, the justices at the Supreme Court are beginning to have reservations about the Panopticon state that has metastasized since 9/11. In June 2014 the court made a surprising ruling on the legal admissibility of cell phone data obtained without a judicial warrant. Law enforcement organizations naturally argued that warrants were not needed, in line with their perennial contention that unless the courts grant them police-state powers and complete immunity from wrongdoing, public safety will be endangered and officers’ lives will be at risk. Since the demise of the Warren Court, and particularly since 9/11, America’s court of last resort has normally found in favor of an authoritarian interpretation of police and national security powers. This time, however, was different. The court ruled unanimously that a judicial warrant was required because the vast amount of personal data on a cell phone renders it qualitatively different from inspecting the contents of a wallet.
The ruling was carefully hedged to avoid inviting challenges to the admissibility of NSA surveillance, but it was nevertheless significant both for the unanimity of the verdict and its unambiguousness. It was certainly surprising to find that the most reactionary high court since the Gilded Age had ruled in favor of individual liberties against the prerogatives of the state. Perhaps the fact that the case did not involve corporate interests permitted it (one might have expected the phone manufacturers and carriers to have filed an amicus curae brief to demonstrate their newfound concern for their customers’ privacy; alas, that did not happen).
Beyond the plain constitutional arguments on the narrow matter of domestic law enforcement, it is also possible that after an entire year’s headlines about the fragility of personal privacy in the computer age, the justices just may have been spooked by the implications of the surveillance state. Or perhaps, despite the hackneyed government slogan that if you have nothing to hide you have nothing to fear, the truth is that everybody—even a robed chief justice on his alabaster throne in the temple of the Supreme Court—has something to hide and something to fear.
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