U.S. Supreme Court

Does Fourth Amendment protect computer data? Scalia says it's a really good question

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Justice Antonin Scalia told students at Brooklyn Law School on Friday he didn’t want to answer questions about mass surveillance by the National Security Agency.

But the justice went on to say that conversations aren’t protected by the Fourth Amendment, and he appeared intrigued by a law student’s question about protections for computer data, report the Business Insider and Politicker.

Scalia was taking part in a Q-and-A session with Fox News commentator Andrew Napolitano, a former New Jersey judge, who asked if mass surveillance of cellphones and emails are protected by the Fourth Amendment. “You’re getting into the NSA stuff, right?” Scalia asked. He told Napolitano he couldn’t answer such questions because the issue may come before the court.

But he went on to say he didn’t think “conversations” are protected by the Fourth Amendment, which protects “persons, houses, papers and effects,” according to the Politicker account. “A wiretap is not a ‘persons, houses, papers and effects.’ It may be a very bad idea. Some states have laws against it. There probably should be laws against it. But it doesn’t violate the Constitution,” Scalia said.

A law student returned to the issue later in the evening, asking Scalia if computer data is one of the “effects” protected by the Fourth Amendment. According to Politicker, Scalia was impressed by the question. “Mmm! Mmm!” Scalia said. (Bloomberg indicates Scalia said “Ooh, Ooh!)

“I better not answer that,” he said. “That’s something that may well come up. It’s a really good question.”

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