Philadelphia partner Scott Coffina appeared on the Andrea Tantaros radio show to give the legal perspective on whether or not the government’s use of anti-terrorism surveillance capabilities under the Patriot Act is constitutionally sound.
In the 1979 case of Smith vs. Maryland, the U.S. Supreme Court found that people have no reasonable expectation of privacy when it comes to phone-call metadata; that is, the number of the caller, the number of the recipient of the call, the duration of the call and the time of the call. The question is whether this 34-year-old ruling is applicable today.
Scott noted that this type of data is, right now, supported by Supreme Court but it may be time to question it. He said that the actions of whistleblower Edward Snowden have reenergized the debate on the trade-off between security and privacy. The changes in the law made to enhance the president’s hand following the events of 9/11 have, as feared, crept wider and wider. Scott emphasized that we don’t want to get complacent about the expansion of the government’s powers.
Tantaros stated that a lot of what George W. Bush did in his second term with regard to surveillance looks like what Obama is doing now. She questioned whether the public trusts the Obama Administration to use the data appropriately and whether Obama has broadened the interpretation of the Patriot Act.
Scott replied that it is hard to tell since the current program incorporates information that is gathered in partnership with so many private, sophisticated companies. He said the definition seems to have widened in terms of technical availability, which can be good in that the government has more information, but problematic because that information must be used competently to thwart attacks and also appropriately to prevent misuse.
On the issue of whether Obama has adequately addressed the topic after stating he welcomed a healthy debate, Scott noted that this is an opportunity for the president to sit in the Oval Office and defend his program, and that it is surprising he doesn’t want to.
Scott recalled how in the closing days of the Bush administration, when he served as Associate Counsel to the president, there was discussion over whether Obama would adopt the programs initiated by George W. Bush that he had been criticizing so heavily in the run-up to the election. Scott said that since he has largely adopted the same procedures, he should give his predecessor credit for establishing the tools, explain the tools and defend the tools. Scott said Obama’s reluctance to step forward and explain these programs intensifies the incremental chipping away, if not wholesale erosion, of trust in his administration.