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Are Rand Paul’s NSA Metadata Concerns Misplaced?

Senator Rand Paul Patriot Act filibuster


Earlier this week Fox News’s Megyn Kelly conducted an incisive interview with Senator Rand Paul (R., Ky.) about his opposition to the National Security Agency’s metadata-collection program under Section 215 of the PATRIOT Act (the business-records provision). That interview prompted our good friend Andrew C. McCarthy of National Review to post a detailed rebuttal of Paul’s position that was so thought provoking we think it needs further discussion from our large audience of constitutionalists.

Senator Paul’s concerns (which we largely share) boil down to two issues said McCarthy.

First, the senator contends that a court order directing a telecommunications company to turn over the records of usage by its customers is a “general warrant,” an evil the Fourth Amendment was designed to prevent.

Second, while Senator Paul acknowledges that the Supreme Court, in Smith v. Maryland (1979), held that the Fourth Amendment is not implicated by a service provider’s records of the customer’s telephone usage. Senator Paul says that Smith is an old case (not from “modern times”), and that it involved the records of a single person who was suspected of crimes, not — as in the metadata program — the records of millions of people who are not criminal suspects.

In Andy McCarthy’s analysis neither of these two arguments holds water because the Supreme Court, and years of legislation, legal practice and scholarship, have already found to the contrary.

With regard to the Fourth Amendment argument McCarthy points out that a general warrant is a government grant of authority to search and seize unspecified persons or places without limitation. To prohibit it, the Fourth Amendment requires that a search warrant describe with particularity “the place to be searched, and the persons or things to be seized.”

There are two fatal flaws in Paul’s general-warrant claim argues McCarthy.

One: The Fourth Amendment, notes McCarthy, requires the government to obtain a judicial search warrant only if it wishes to search or seize categories of very personal property that are spelled out explicitly in the amendment — namely, one’s “person, house, papers and effects.” Business records that are the property of a third party (namely, a telecom) do not constitute the customer’s person, house, papers, or effects. You do not have a constitutional privacy interest in property that belongs to a third party.

Two: Andrew McCarthy says Senator Paul confuses a demand for a large amount of information with a lack of specificity. The fact that Section 215 orders require the telecoms to produce lots of data does not mean the orders do not particularize what data is sought.

Again, concludes McCarthy, because we are not dealing with matters that trigger Fourth Amendment protection (one’s person, house, papers, and effects) there is no requirement for a Section 215 order to comply with the Fourth Amendment’s specificity mandate. Yet it is quite specific nevertheless. The order does not tell the telecom, “Provide all your records, of any kind”; it directs the telecom to provide for all subscriber numbers (but not names, addresses, or other identifying information) records showing what numbers (not names) were called, plus the date, time, and duration of the calls. Yes, it is a lot of information, but the orders are particular about what may and may not be collected. Clearly, they are not “general warrants.”

The key, concludes McCarthy, is who owns the records.

We all know that we do not have a property right in another person’s belongings, and if his papers and effects happen to detail activity in which we’ve been involved, we do not have a constitutional right to shield that information from government agents conducting legitimate investigations.

McCarthy then examines the Smith Court’s rationale that third-party business records do not trigger Fourth Amendment privacy protections.

The question before the Court McCarthy says was not whether the customer at issue was a criminal; it was whether he had a cognizable privacy interest — his status as a suspect was beside the point.

Second, what is Senator Paul relying on to show that the 36-year-old Smith ruling is obsolete asks McCarthy?

Why, it’s the 226-year-old Fourth Amendment. Even if Smith really were ancient history (and it’s not says McCarthy), the justices were relying on an understanding of technology and privacy that was over two centuries more modern than that of the Framers.

While acknowledging that there are some private confidential relationships our law protects by shielding communications from even judicial proceedings — e.g., privileges against disclosure for married couples, and for persons in a priest-penitent, doctor-patient, or attorney-client relationship, McCarthy says that despite the populist appeal of privacy extending to our phone records and other personal business transactions, other than these longstanding exceptions, the rule is that private confidentiality arrangements must yield to lawful investigative demands.

McCarthy concluded his critique of Senator Paul’s position on the Patriot Act Section 215 reauthorization with three points, two of which we think are especially worthy of consideration. (You can read Andrew C. McCarthy’s entire article “Rand Paul’s NSA Metadata Concerns Are Misplaced” through the link.)

First says McCarthy, Senator Paul repeatedly (and says McCarthy disingenuously) blends together his claim that the metadata program violates the Constitution with the fact that the federal appeals court for the Second Circuit recently ruled that the program is “illegal.”

Transparently, says McCarthy, the Senator is implying that the court concurred in his legal analysis — an effort to give his Fourth Amendment claims the patina of judicial heft. But as the senator well knows, the Second Circuit did not hold that the metadata program violates the Constitution; it concluded that the program transgressed the limitations of a statute — Section 215.

This is an extremely important point that leads us to McCarthy’s conclusion and final point.

Conflating government capabilities with government action is a mistake. Nobody would argue that the government has the capability to abuse the metadata program just as it can abuse any other government program or power. Senator Paul’s argument is akin to saying that because the enormous power of our armed forces could enable a rogue executive branch to take over American cities and impose martial law, we should disband the armed forces.

Of course that’s exactly why we have the Posse Comitatus Act to limit the powers of the federal government in using its military personnel to act as domestic law enforcement personnel – but it’s statutory, there’s no constitutional prohibition against the use of the military for domestic law enforcement purposes.

So, says McCarthy Senator Paul is entirely right that we need legal privacy protections that evolve with modern technology and societal views of what should be private. As a self-proclaimed constitutionalist, however, he should understand how the Framers thought this evolution should occur.

In the Fourth Amendment, they gave us a core of protection from government intrusion on specific, intimate privacy interests — our physical persons, our homes, and our private papers and effects. But that core of protection is only the bare minimum of what we now call our “privacy” rights; it was never meant to be the totality of those rights.

We were always meant to have additional privacy protections beyond the Fourth Amendment. But those protections are supposed to be enacted by Congress, which can weigh competing concerns and strike the right balance between liberty and security. They are not supposed to be judicially manufactured by pretending that the Fourth Amendment is “organic” and that it says things it plainly does not say.

As any real constitutionalist should recognize, the role of Congress in perfecting our rights under the Constitution is essential, that is the way the Framers designed it and that is why the current debate, now that the House has passed a version of Mike Lee’s “USA Freedom Act,” is so essential to both security and liberty.

The abbreviated version of the Rand Paul interview as aired is on the Kelly File website; the full interview (which runs about 13 minutes and also features Kelly Paul, the senator’s wife) has been posted on Fox News’s blog, here.

We urge you to read the transcript and watch the Rand Paul interview, read Andrew C. McCarthy’s entire article “Rand Paul’s NSA Metadata Concerns Are Misplaced” and let us know what you think in the comments section below.

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Dr. Rand Paul Brings Life Support to 4th Amendment

The spirit and letter of our Declaration and Constitution are under increasing assault. So accustomed have many become to the good old security propaganda that our "novo ordo" liberty first exceptionalism is degraded and forgotten.

War without Congressional declaration is just one example of a constitutional dam break. In addition to the blatantly illegal NSA trashing, our 4th Amendment is regularly assaulted by a militarized, central government subsidized local police who execute "war on drugs" no knock home raids.

When the FCC decided not to investigate NSA, et al., caused Rep. Edward Markey (D-Mass.)to warn: "The FCC, which oversees the protection of consumer privacy under the Communications Act of 1934, has taken a pass at investigating what is estimated to be the nation's largest violation of consumer privacy ever to occur. If the oversight body that monitors our nation's communications is stepping aside then Congress must step in."

Andrew McCarthy's arguments overlook the federalist argument of the various restrictions of the states on recording conversations. Also, our expectations of advance notice and "timed beeps" are two pedestrian examples of long established practice. Interesting that so established was the expectation of liberty at the time that some of the Founders initially resisted the necessity for the Bill of Rights.

We who support liberty should welcome Dr. Rand Paul's life support efforts for liberty and our 4th Amendment rights.