Even some NSA proponents want to see its phone-record collection program tried in the Supreme Court. In a statement today, Senator Dianne Feinstein (D-CA) — a consistently strong supporter of the NSA's programs — said that she would welcome a Supreme Court review of the agency's collection of phone metadata so that there can be a definitive opinion on its legality. Naturally, Feinstein argues that it'll be found legal, but she'd still like that belief to be held up. "I believe it is crucial to settling the issue once and for all," Feinstein says.
"Clearly we have competing decisions."
Feinstein's statement comes following a federal court ruling yesterday that the program is in fact unconstitutional. As Feinstein points out, the new ruling is at odds with previous decisions. "Judge Leon’s opinion also differs from those of at least 15 separate federal district court judges who sit, or have sat, on the FISA Court and have reauthorized the program every 90 days — a total 35 times in all," Feinstein says. "Clearly we have competing decisions from those of at least three different courts."
Much of the contention lies in courts' continued application of Smith v. Maryland, a 1979 Supreme Court decision that's been used to justify the legality of metadata collection. In his ruling yesterday, Judge Richard Leon argued that the decision is now too outdated to be held to. "When do present-day circumstances ... become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply?" Leon's decision reads. "The answer, unfortunately for the government, is now."
Feinstein too agrees that Smith is in need of a second look. "I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality," Feinstein says. With Leon's ruling, the NSA's metadata collection program will have to be addressed over the next year in one way or another. The NSA would likely prefer to resolve the issue before it reaches the Supreme Court, but with so much interest from opponents — and now even one major supporter — perhaps the courts will also be interested in a final ruling.