Was Scalia Spooky?

Antonin Scalia’s views on snooping, in the 1970s and later

The Globe and Mail‘s Sean Fine is as good a reporter as he is a bad analyst. Both of his qualities ― an impressive ability to find and tell a great story, and an unthinking belief in simplistic ideological classification of judges ― are on full display in his latest article, a fascinating story of how Antonin Scalia, then a professor at the University of Chicago, was commissioned to produce a report on “United States Intelligence Law” for the McDonald Commission, which investigated the RCMP’s espionage activities and whose eventual recommendations led to the creation of CSIS. Mr. Fine contrasts “[t]he report’s scrupulously impartial (for the most part) author” with the judge that he would become; the former, sensitive to privacy rights if also keen to ensure that intelligence agencies can operate effectively; the latter, in Mr. Fine’s telling, brazenly unconcerned with them, and condoning “torture in some circumstances”. But things are more complicated than Mr. Fine lets on.

Before I get to that, I’ll note little anecdote that Mr. Fine passes over, perhaps because this is a bit too inside-baseball for the Globe‘s readers. Mr. Fine explains that it was Peter Russel, who was the director of research for the McDonald Commission, who recommended then-professor Scalia’s hiring ― on the advice of Edward Levi (Scalia’s boss as Attorney-General in Gerald Ford’s administration) and Herbert Wechsler (a distinguished scholar, notably of the “neutral principles” fame). What Mr. Fine does not mention is that prof. Russel’s recommendation (a scan of which is included in the article) noted that Levi and Wechsler ranked Scalia ahead of none other than Robert Bork. (Prof. Russell, by the way, seems to have had a bit of an issue with names in that memo, referring to “Anthony” Scalia and “Richard” Bork.) Ironically, the Reagan administration would later rank Scalia and Bork in the same order when it came to making their appointments to the Supreme Court. Scalia was nominated in 1986, and confirmed by the Senate on a 98-0 vote; Bork was nominated in 1987 and rejected by the Senate after hearings so bitter that his name became a verb, in which his views and record were arguably distorted out of all recognition by Ted Kennedy and the latest recipient of the Medal of Freedom.

And, to get back to my point, this is a bit what Mr. Fine tries to do with the late Justice Scalia, albeit on a much smaller scale. He makes a point of noting that prof. Russell

would … later be appalled by the justice’s support of originalism – a judicial philosophy in which constitutional rights do not evolve over time, but stay rooted in the vision of the Founding Fathers of the United States. “Originalism is absolute nonsense”,

he quotes prof. Russell as saying. And he refers repeatedly to a “2007 speech” Scalia gave in Ottawa, in which “he was more the suspicious-of-too-many-legal-protections conservative”.  But Justice Scalia’s originalism was neither “nonsense” nor all bad for the protection of privacy rights against over-curious governments.

Prof. Russell, Mr. Fine, and those who think like them ― admittedly, a large contingent in Canada ― might just learn a thing or two from the expanding scholarship documenting the presence of originalism in Canada, and in some cases advocating the expansion of this presence. This scholarship includes (but is not limited to) recent articles by Sébastien Grammond and J. Gareth Morley focusing on the Supreme Court’s opinions on the appointment of Justice Nadon and Senate reform; an as-yet-unpublished paper by Asher Honickman, on federalism; Kerri Froc’s work on women’s rights; and the pair of articles that Benjamin Oliphant and I wrote last year. The first of these, which should come out any day now in the Queen’s Law Journal, shows that contrary to popular belief, the Supreme Court has not squarely rejected originalism, least of all what is arguably the dominant form of originalism now, one focused on the original meaning of constitutional texts (rather than their framers’ intentions or expectations). The second, due to come out in the UBC Law Review later this year, shows that, in fact, the Supreme Court resorts to originalist reasoning in a surprising variety of cases. If Prof. Russell is right that “originalism is absolute nonsense”, then not only has the Supreme Court never renounced it, but in fact large swathes of its jurisprudence (and of that of the Judicial Committee of the Privy Council), are nonsensical too.

But more directly relevant to my present topic is our discussion, in the first paper, of the contrast between Justice Scalia’s reasons, for a 5-4 majority of the Supreme Court of the United States, in Kyllo v United States, 533 U.S. 27 (2001), and Justice Binnie’s reasons for the unanimous Supreme Court of Canada in R v Tessling, 2004 SCC 67, [2004] 3 SCR 432. As we explain (actually, the credit here goes to Mr. Oliphant):

The issue, in both cases, was whether the use of a thermal imaging device by the police amounted to a “search” within the meaning, respectively, of the Fourth Amendment to the U.S. Constitution and section 8 of the Charter. In Kyllo, Justice Scalia … found that because information about what went on within the home ― however collected ― would have been secure from search and seizure at the time the Fourth Amendment was passed, the state cannot now invade that sphere of privacy through the use of new technology.

Justice Binnie, writing for a unanimous Supreme Court, disagreed… Justice Binnie rejected the relevance of Kyllo on the basis that it was “predicated on the ‘originalism’ philosophy of Scalia J.,” [61] and because it is not “helpful in the Canadian context to compare the state of technology in 2004 with that which existed at Confederation in 1867, or in 1982 when s. 8 of the Charter was adopted.” [62]

Tessling is an odd hill upon which to make a stand against originalism. Kyllo, which the Court in Tessling refused to follow, did not restrict constitutional meaning to those realities foreseen by the framers, as originalism does according to the “frozen rights” or “dead” constitution caricature frequently encountered in the Canadian literature. It did precisely the opposite. … Indeed, it is not clear to us just what Justice Binnie is actually rejecting in refusing to follow the “originalist” philosophy underlying Kyllo, or in stating that it is unhelpful “to compare the state of technology” in 2004 with what which existed in 1982. The logic of Kyllo was to deny that changes in technology can diminish the scope of constitutional protection over time; there was no “comparison” of technologies, because changes in technology were irrelevant to the interpretive question of what was protected. (25-26; a paragraph break and a reference removed)

We conclude that

In the ultimate result, and despite frequent and nebulous assertions that the Charter must be read in a “large,” “liberal,” and “generous,” manner, Justice Scalia’s originalist philosophy unquestionably resulted in a more general and robust protection for personal privacy than Justice Binnie’s “purposive” approach to interpreting section 8 of the Charter. (27)

Of course, this is not to say that Justice Scalia was always right, on privacy issues or on anything else. Indeed, this does not even prove that originalism is the better approach to constitutional interpretation than whatever it is that the Supreme Court of Canada is doing. But both originalism and Justice Scalia’s legacy are more complex than many Canadians, including Mr. Fine, tend to assume. We owe Mr. Fine for telling us a story that shed more light on the late Justice’s oeuvre. It’s too bad he tried to shoehorn that story into a simplistic ideological framework that is as misleading as it is useless.

Tell Them Carefully

Cross-border disclosure of wiretaps survives the scrutiny of a (politely) divided Supreme Court.

Last week, the Supreme Court issued its decision in Wakeling v. United States of America, 2014 SCC 72, upholding the release by Canadian authorities to the United States of recordings of Mr. Wakeling’s communications, which had been wiretapped by the RCMP acting pursuant to a warrant, and which the Americans used as a basis for requesting his extradition on drug charges. Three judges (Justices Moldaver, LeBel and Rothstein) found that the release of wiretaps to foreign states does not infringe the right, protected by section 8 of the Charter, “to be secure against unreasonable search or seizure”; one (the Chief Justice) found that section 8 was not engaged at all; and three (Justices Karakatsanis, Abella, and Cromwell) found that it was indeed infringed.

Section 193 of the Criminal Code prohibits the release of “intercepted” “private communication[s],” subject to a number of exceptions. One of these, par. 193(2)(e), applies

where disclosure is made to a peace officer or prosecutor in Canada or to a person or authority with responsibility in a foreign state for the investigation or prosecution of offences and is intended to be in the interests of the administration of justice in Canada or elsewhere.

Mr. Wakeling argued that this exception suffered from a number of constitutional defects: it was, he said, overbroad and vague, and lacked any accountability mechanisms. (He raised some other arguments as well, which all the judges rejected, and which I will not address here.)

***

Before getting there, however, he had to establish that the Charter was engaged at all. The Chief Justice thought that it was not, because “sharing information obtained under warrant for law enforcement purposes with foreign law officers does not violate s. 8,” [96] except in cases where the disclosure will used abusively (for example “for rendition to a foreign country … or public titillation” [95] or to enable torture or mistreatment).

Justice Moldaver, however, accepted that s. 8 of the Charter was engaged, despite the fact that the disclosure of an already-intercepted communication is not a “search” (as Mr. Wakeling claimed). In his view,

[t]he highly intrusive nature of electronic surveillance and the statutory limits on the disclosure of its fruits suggest a heightened reasonable expectation of privacy in the wiretap context. Once a lawful interception has taken place and the intercepted communications are in the possession of law enforcement, that expectation is diminished but not extinguished. [39]

The test for deciding whether the disclosure infringes s. 8, similar to the one applicable to a search, is

(1) whether the Impugned Disclosure was authorized by law; (2) whether the law authorizing the Impugned Disclosure is reasonable; and (3) whether the Impugned Disclosure was carried out in a reasonable manner. [42]

In this case, the first prong of the test was obviously satisfied, and the focus was almost entirely on the second.

Mr. Wakeling’s first arguement against the reasonableness of par. 193(2)(e) of the Criminal Code was that it was overbroad in authorizing “near-limitless” disclosures. Justice Moldaver rejected this claim because the Code “limits the type of information that may be disclosed, the purpose for which it may be disclosed, and the persons to whom it may be disclosed” [55]. He also rejected additional arguments concerning the scope of par. 193(2)(e) made by the BC Civil Liberties Association. To the latter’s claim that it was not reasonable to authorize disclosure in the interest of the administration of justice in a foreign state rather than in Canada, Justice Moldaver answered that Canada also benefits from international co-operation, which has to be reciprocal. To the assertion that authorizing disclosure for improper purposes, or with knowledge that it would be used to torture or otherwise abuse people, he replied that “the disclosing party must subjectively believe that disclosure will further the interests of justice in Canada and/or the foreign state. The belief must be an honest one, genuinely held” [59], a criterion that would probably not be met if the disclosing party does not know how the information disclosed would be used, and still less if it know that it will be used to commit human rights violations.

Mr. Wakeling’s next argument was that the requirement that disclosure to foreign authorities be for the purposes of “the administration of justice” is unconstitutionally vague. Not so, said Justice Moldaver. “Administration of justice,” he said, “means that disclosure must be for a legitimate law enforcement purpose,” and that’s precise enough to guide legal debate.

Finally, Mr. Wakeling contended that par. 193(2)(e) did not provide sufficient accountability mechanisms, whether notice to the target of the wiretap, record-keeping, reporting to Parliament, or mandatory imposition of conditions on the ways in which the recipients of disclosure would use the information in question (known as “caveats”). Justice Moldaver rejected these claims, on the basis that the existing accountability mechanisms are enough. Additional safeguards may be desirable and worth encouraging; their existence or application to a particular case may even be relevant to determining whether a given disclosure was authorized by law or reasonable; but they are not constitutionally required. Justice Moldaver seems to have been concerned about imposing, as a constitutional matter, excessively rigid rules in the area of foreign relations and co-operation between law enforcement agencies. He concluded this part of his reasons by

emphasizing that this Court’s task is not to determine whether there may be better or additional accountability measures or stricter language that could be put in place with respect to the cross-border disclosure of wiretap communications. Any attempt to micromanage Parliament in this context must be approached with great care. The task at hand is to determine whether s. 193(2)(e) passes constitutional muster. [77]

It is worth noting here that, although she did not formally reach this question because of her conclusion that s. 8 was not engaged at all, the Chief Justice opined that “[t]hese are difficult questions more redolent of policy than of law. Parliament has considered them and answered with the offence provisions and exemptions of s. 193,” [100] and suggested that Parliament’s choices deserve deference.

The final prong of the s. 8 test asks whether the disclosure at issue was itself carried out in a reasonable manner. There was no real dispute that this requirement was satisfied here. However, Justice Moldaver pointed out that in other cases, “[w]here a disclosing party knows or should have known that the information could be used in unfair trials, to facilitate discrimination or political intimidation, or to commit torture or other human rights violations” [80], the requirement that disclosure be carried out in a reasonable manner could entail the imposition of caveats or other precautionary measures ― or, in the more extreme case, may operate to prevent disclosure at all.

For her part, Justice Karakatsanis disagreed with Justice Moldaver on the matter of accountability requirements. She worried that “[w]hen information is shared across jurisdictional lines, the safeguards that apply in domestic investigations lose their force,” which “can create serious risks to individual privacy, liberty and security of the person interests.” [118] To mitigate these concerns, Justice Karakatsanis would have made mandatory the imposition of caveats that would

provide some assurance to our law enforcement agencies that disclosed information will only be used to advance legitimate law enforcement objectives, in accordance with respect for due process and human rights and will not be shared further except as agreed to by the disclosing party. [133]

Furthermore, Justice Karakatsanis would have required the implementation of some form of record-keeping and notice-giving mechanisms applicable specifically to cross-border disclosures. The fact that such mechanisms apply to the general fact of the interception of communications was not enough, in her view, because cross-border disclosure comes with its own set of privacy risks. However, Justice Karakatsanis did not specify the form that such mechanisms ought to take, leaving it to Parliament to figure this out.

Having found that par. 193(2)(e) is not a “reasonable” law and thus infringes s. 8 of the Charter, Justice Karakatsanis summarily rejected the possibility that it might be justified under s. 1, on the basis that it is minimally impairing, since alternatives more respectful of privacy interests are available to Parliament.

***

I do not have any particularly deep thoughts about the substance of the Supreme Court’s decision. (Craig Forcese does, mostly about what it means for Canada’s security services, and what Parliament should do to address the somewhat uncertain situation in which they now find themselves. Do read what he has to say.) I will, however, make a couple of observations.

The 1-3-3 split in Wakeling, following similar multi-way splits in cases such as R. v. TELUS Communications Co., 2013 SCC 16, [2013] 2 SCR 3, seems to indicate that s. 8 and privacy rights more broadly remain an area on which the Supreme Court, so inclined towards consensus on most topics, still cannot agree. Yet it is worth noting that the splits do not involve consistent “camps” that would suggest irreconcilable differences of views. Indeed, in Wakeling, Justices Moldaver and Karakatsanis go out of their way to acknowledge each other’s concerns ― to an extent remarkable even by the Court’s usually polite standards.

This, to me, seems to suggest that we are in an area of reasonable disagreement between people debating in good faith. And that, in turn, might mean that Justice Moldaver’s and the Chief Justice’s appeals for deference to Parliament are especially appropriate. At least insofar as Parliament considers the interests at stake and tries to strike a balance between them, judges should probably hesitate before upsetting this balance. This is all the more so if they have limited evidence about how cross-border information-sharing actually operates, which may well have been the case in Wakeling. That said, Parliament should not get the benefit of deference if it fails to study and debate the issues before it with some degree of care and honesty. Unfortunately, the legislative practices of the current government do not inspire much confidence on that front.

New Ideas and Old

Time to emerge from my holiday hibernation. And it seems fitting to start off the new year with some reflections, or at least a re-hash of some reflections, on the subject of social, technological, and legal change. The immediate occasion for doing so is a column by Washington Post’s Robert Samuelson on the widespread outrage provoked by revelations of the NSA’s data-collecting activities.

Mr. Samuelson argues that these revelations are commonly “stripped of their social, technological and historical context.” The context in question is the fact that “millions upon millions of Americans have consciously and, probably in most cases, eagerly surrendered much of their privacy by embracing the Internet and social media.” For people who disclose all sorts of information about their lives to strangers and to the social media companies to complain about the government collecting some limited kinds of information about them, subject to legal constraints, is “hypocritical.” Besides, the NSA’s activities are also not nearly as intrusive as past government programmes for spying on citizens: during the Vietnam War, “the CIA investigated 300,000 anti-war critics.” However questionable the need for or effectiveness of specific NSA programmes, Mr. Samuelson adds, “[i]n a digitized world, spying must be digitized.” In short, our views on privacy need to take the context of 2014 into account. Some of you may recall an early post of mine in which I discussed a paper by Chief Judge Alex Kozinski, of the US Court of Appeals for the 9th Circuit, arguing that privacy is pretty much dead, because courts treat as private the things that citizens expect to be private, and if citizens, through their online behaviour, demonstrate that they do not expect any information about them to be private, then the courts will act accordingly. Chief Judge Kozinski was worried by this possibility. Mr. Samuelson does not seem to be. Should we?

Mr. Samuelson is right to insist on context, both historical and social, before getting outraged. It is easy to forget that new technologies often do no more than give a new form to things which existed long before. As I suggested here, “[n]ew technologies seem not so much to create moral issues as to serve as a new canvass on which to apply our old concerns.” And there may well be something hypocritical in failing to care about disclosing all kinds of personal information to companies that (try to) make money out of it, yet being furious at governments using similar information to (try to) prevent terrorist attacks. What the NSA does is arguably not as big a deal as some of the outraged think. Yet that does not fully justify Mr. Samuelson’s unconcern. Both he and Chief Judge Kozinski forget that the end of privacy as we had known it need not, and arguably does not, mean the end of privacy tout court. Old norms about what is and what is not private are breaking down under the pressure of technological change. But that does not mean that new ones do not emerge.

In particular, the norm that seems to be replacing near-categorical prohibitions on using certain sorts of information is one that makes all sorts of personal information fair game subject to the consent of the person concerned. Attempts to prohibit email providers from “reading” the contents of our messages look silly considering the hundreds of millions of people who use Gmail knowing that Google does just that ― but the point is that they know what is going on. Similarly, people accept to share information on Facebook, so long as they know they are sharing it ― but they are unhappy when Facebook tries to expand the visibility of the things they shared without telling them. This example also hints another important norm in the new privacy universe ― one of differentiated, rather than categorical, privacy. The fact that we accept to share information with some people or organizations does not mean that we are willing to share it with others.

Arguably, these norms aren’t exactly new. For instance, we always shared some things with our friends that we kept from our parents, and told parents things we wouldn’t admit to our friends. Even before Facebook, few things were private in the sense of nobody knowing about them. But new technologies make the choices to tell and not to tell more pervasive, more nuanced, and more explicit than they perhaps had to be before. They also make the relativity of privacy more apparent.

The problem with the NSA data collection, as others have said before, is arguably not so much its substance as the lack of consent and awareness of those affected. That, rather than the collection of personal information as such, is what contravenes the key norms of the new privacy paradigm. And to the extent that the outrage about the NSA’s activities caused by this violation, it is not all hypocritical.

I’m not sure there is much of a point to these ramblings. I’m still trying to write my way into the new year.