The Court That May Evaluate NSA Surveillance Hasn't Yet 'Gotten to Email'

The ultimate decision on the legality of NSA surveillance may come down to the Supreme Court. Perhaps by then the justices have learned how to use email.

The ultimate decision on the legality of NSA surveillance may come down to the Supreme Court. Perhaps by then the justices have learned how to use email.

The Court's technological ignorance doesn't come as much of a surprise. Last year marked the first time that Pew Research found a majority of seniors use the Internet and email. And the Supreme Court — average age: 67 — certainly falls into that demographic category.

It was Justice Elana Kagan (age: 53) who told Politico that email isn't yet at the top of her colleagues' to-do list.

"The justices are not necessarily the most technologically sophisticated people," she said, adding that while clerks email each other, "The court hasn't really 'gotten to' email." …

Kagan said it was hard to predict what cases the court will address down the line, but said she expects there will be new issues related to privacy, emerging technologies and electronic snooping.

It's easy to find this amusing, that members of the highest court in the land may not know the difference between the subject field and the message body. But considering that second part, that the body is also the one that will likely be tasked with evaluating the NSA's use of Internet monitoring systems and the agency's review of Americans' online activity, it's not very funny.

Email is central to the NSA's activity. Until 2011, the agency collected email metadata on every American. It still regularly scans Americans' emails for certain keywords as they pass over the country's borders. And as reported on Tuesday, the agency collects email under other circumstances, too. One need not understand the difference between POP and IMAP in order to evaluate those procedures, but you do need to understand the significance of the NSA's having included the email's subject in its allowable metadata collection.

The Supreme Court's reviewed the NSA's surveillance before. Last year, it allowed the agency's fiber optic wiretapping system to move forward largely because it found that the ACLU didn't have standing to bring the lawsuit, since the organization couldn't prove that it was affected by the surveillance. After receiving assurances that the government told individuals when such evidence was used against them — meaning that those who had standing would know when they did — the Court tossed the case. (As it turned out, the government wasn't regularly informing defendants.)

At least one member of Congress is asking that the Court reconsider sooner rather than later. Over the weekend, Sen. Rand Paul of Kentucky told Fox News Sunday that he felt "[t]here really needs to be a discussion of people who are more skeptical of the NSA in an open court, I think before the Supreme Court."

I think the constitutionality of these programs needs to be questioned, and there needs to be a Supreme Court decision that looks at whether what they are doing is constitutional or not.

The path to the Supreme Court is a slow one, which, given the learning curve on this issue, could be helpful. But as Kagan noted to Politico, the Court has gotten up to speed on technological issues quickly in the past should the need arise.

In one case, involving violent video games the first year she was on the court, justices who had never played the games before dove in and gave them a try, Kagan said.

"It was kind of hilarious," she said.