Did SCOTUS Tip Its Hand On The NSA?

Allahpundit wonders if there might be some clues in yesterday’s Riley ruling, given the surprisingly intense support Roberts expressed for digital privacy:

Maybe not: Gabe Malor’s right that there’s a difference legally between the cops searching data stored on your own hard drive and searching data (or metadata) you’ve shared willingly with a telecom company. There’s a privacy interest in the former but not, under current precedent, in the latter. Then again, Roberts’s language today really is broad. If the Court’s worried about letting the state tap a bottomless reservoir of information about individuals, they may not care much where the tap is placed. You could, in theory, dispatch with current precedent in one flourish: Since, in our interconnected world, virtually all digital information is disclosed to some entity at some point, the act of disclosure to a telecom company can’t be understood as destroying the individual’s privacy interest in the information.

“After Riley,” Tim Edgar remarks, “the intelligence community has some reason to be nervous”:

In defending its activities, the Obama Administration has pointed—entirely appropriately—at privacy protections, including detailed targeting and minimization procedures, and substantial internal and external oversight.  Despite real challenges, these protections are meaningful and far exceed anything that other nations provide to protect privacy in their intelligence activities. The Chief Justice made short shrift of a similar argument in Riley, when the government said it would develop “protocols” to deal with the privacy problems its cell phone searches would create in an age of cloud computing. “Proba­bly a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols,” he said.

As someone who wrote and reviewed many such guidelines for intelligence agencies, I couldn’t agree more!  I expect to see this quote in brief after brief, whenever the government says internal safeguards are good enough. There is undoubtedly some heartburn at the NSA on this point.  Safeguards and oversight matter.  The Supreme Court reminds us that they are no substitute for the Constitution.

But Garrett Epps isn’t ready to make any predictions:

There is already speculation about what, if any, implications this case will have for challenges to the National Security Agency’s amassing and storage of data from Americans’ cell-phone and computer use. It would, I think, be a mistake to read too much into it—nothing in this case implicated national security or terrorism, two government interests to which this Court seems relatively eager to defer—as in Clapper. But it does suggest that the Court that hears that case, when it does, will be more technically savvy than it has been. The John Roberts who wrote Riley will understand why privacy advocates worry about the collection of “metadata” as well as of the contents of calls.