Constitution Daily

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Podcast: Kerr, Rotenberg on NSA domestic surveillance

October 24, 2013 by NCC Staff


How should Congress and the Supreme Court settle questions about warrantless surveillance by the NSA? Does the secret court that rules on NSA cases need reforms?

Nsa_signOrin Kerr of George Washington University and Marc Rotenberg of the Electronic Privacy Information Center joined the National Constitution Center’s Jeffrey Rosen on Wednesday to discuss these and other critical privacy issues in an audio interview.


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Under Section 215 of the Patriot Act and measures extending the act, the National Security Agency is allowed to collect bulk communications records without a warrant.

The NSA gets permission from the secret Foreign Intelligence Surveillance Act court to take such actions, in the form of blanket requests that are renewed periodically.

Rotenberg’s organization, EPIC, is challenging the legality of the bulk collection of telephone records under Section 215 without the issuance of a warrant.

Kerr also believes there are problems with Section 215, but the issues should be dealt with by Congress or the FISA court—and not the U.S. Supreme Court.

In February 2013, the Supreme Court said, in a 5-4 decision, that government warrantless surveillance laws can’t be challenged in court, because plaintiffs don’t have standing to sue over secret procedures that they are unaware of directly.

But last week, the New York Times reported that the Justice Department will, for the first time, allow prosecutors to tell a criminal defendant that evidence against him was derived from warrantless surveillance. Such an action could open the doors for another Supreme Court challenge.

The wide-ranging discussion between Rotenberg and Kerr includes an examination of the Fourth Amendment protections in today’s digital age; the Supreme Court’s eventual role (if any) in settling surveillance controversies; and criticism from both experts about Section 215 of the Patriot Act.

You can listen to the entire interview in our audio player above or below, or click on the following links.


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