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Fitzgibbons Fires Back: Patriot Act Metadata Collection “unsupported by the Constitution”

Senator Rand Paul on CNN


Yesterday, we ran an article summarizing the arguments of National Review’s Andrew C. McCarthy in favor of renewing the Patriot Act’s section 215 metadata collection program.

McCarthy criticized Senator Rand Paul’s opposition to renewal of section 215 of the Patriot Act as “misplaced” and argued that it was based on a perhaps intentional misreading of the Constitution’s Fourth Amendment and subsequent case law and legislation.

You can read Andrew C. McCarthy’s entire article “Rand Paul’s NSA Metadata Concerns Are Misplaced” through the link and our summary and comments through this link “Are Rand Paul’s NSA Metadata Concerns Misplaced?

The abbreviated version of the Rand Paul interview that prompted McCarthy’s article 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 characterized McCarthy’s article as thought provoking and worthy of further discussion and our own Mark Fitzgibbons has responded with a column on CNSNews.

Fitzgibbons rebuts McCarthy’s contention that “no one owns their own metadata,” and points out that “The vaunted conservative National Review magazine (one of my favorites) has a view of the Fourth Amendment under which government may get merchant records. That view, whether the publication realizes it or not, would even extend to National Review’s subscriber list, which highlights why it is important to view government power skeptically.”

Fitzgibbons argues that the interpretation of the Fourth Amendment propounded by NRO and Andy McCarthy is one that favors government power over the constitutional rights of the people:

The third-party doctrine, which is a judicial fiction unsupported by the Fourth Amendment’s text, and has been rejected in I believe seven states, was initially more limited to the bank records of one targeted crook at a time. It was not created to let government grab the records of all people held by all businesses all of the time.

Lowry writes, “If the National Security Agency’s bulk-data program expires, the coroner should conclude that it was ‘death by bumper sticker.’” Well, better that than death to the Fourth Amendment by bumper-sticker application of the third-party doctrine.

Proponents of mass, random harvesting of business-owned records have adopted the un-conservative position that this judicial doctrine construing the Fourth Amendment should forever trump public opinion and even the separation of powers. The people’s elected officials can overturn the court when the court is wrong. We are still, after all, a republic.

That does not mean, of course, that the Constitution isn’t paramount law over even our elected representatives, who may not violate the Constitution with legislation. But it is also true that when judicial opinions favor government acts in violation of the constitutionally protected rights of the people, the black-robed ones are not the last word.

And that’s one area where McCarthy and Fitzgibbons agree:  Congress ultimately has the power and responsibility for implementing and perfecting the rights and law codified in the Constitution, which is why the current debate on the renewal of the Patriot Act’s section 215 is so important.

And Fitzgibbons comes down on the side of Congress acting to rein-in government power in favor of protecting the rights of private citizens; “The judicially created Fourth Amendment third-party doctrine is the product of judicial activism in favor of government power. Because it is not supported by the text, purpose or history of the Fourth Amendment, it may be overturned through our republican process, which involves the will of the people, bumper stickers and all.”

Fitzgibbons concludes with a point that summarizes where he and McCarthy disagree: “…while phone companies, publications and other businesses own certain data we’ve contractually and voluntarily imparted to them in the free market, that does not mean we impart those data to the government. It’s still private property even if owned or possessed by a third party.”

In America, neither individuals nor businesses are expected to hand over data or other private property to government without probable cause and a judge-issued warrant, or after trial under due process. Popular sentiment and the Bill of Rights are aligned on this. We’re not supposed to be a police state, which is why the Fourth Amendment’s protecting this private property from the government is quintessential American law over government says Fitzgibbons, and we agree.

You can read Mark Fitzgibbons’ article for CNSNews “FED’s Mass Data Collecting ‘Third-Party Doctrine’: A Judicial Fiction Unsupported by the Constitution” through the link, then let us know what you think in the comments section below.

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