Orin Kerr writes:
Don’t overlook one key feature of surveillance reform and the passage of the USA Freedom Act: It came from legislation, not the Fourth Amendment. A court had wrongly allowed the bulk surveillance program that Congress had not actually authorized. When the public became aware of the program, Congress restricted the program by passing a new law.
Note what wasn’t a significant influence on the reform: the Fourth Amendment. All but one of the judges who ruled on the issue concluded that the Fourth Amendment wasn’t implicated by the bulk telephony metadata law. In the one case where a judge ruled that the prior program violated the Fourth Amendment, that court stayed the ruling on appeal and the court of appeals on review seemed pretty skeptical about the ruling at oral argument. Another appellate argument echoed that skepticism. And yet Congress acted anyway to curtail the program. Congress didn’t need the Fourth Amendment to do that. Instead, Congress just acted out of a sense that the public interest favored restricting the program.
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