Saylor reasoned that in decisions where the “outcome is sufficiently clear” and that reasonable jurists would agree, the appointment of privacy panel is not required by the Freedom Act. “This is such an instance,” Saylor concluded.
But some privacy advocates were rankled by the Court’s reasoning, and suggested Saylor was too relaxed in his discussion regarding when privacy experts should be called on to weigh in on a decision.
“Propriety in the spirit of the USA Freedom Act is when the decision at hand were to have an impact on the rights of individuals, not necessarily when the Court conjectures that a decision is self-evident,” said Amie Stepanovich, U.S. policy manager at Access, an international digital-rights organization. “It is the job of the amicus to raise issues that may not be readily apparent on first blush, meaning that what first may appear to be a clear-cut decision actually raises underlying questions. The Court must respect the presumption of the statute in favor of appointing the amicus.”
No surprises here.