As part of the general fit the establishment threw when Rand Paul stood in the way of the Patriot Act, Andrew McCarthy makes the argument that there is no Constitutional restriction on the NSA's data collection program.
This is dependent on two arguments. First, that records held by a third party are not protected under the "person, house, papers and effects" of the Fourth Amendment, and that the wide-ranging and indiscriminate recording of US phone records is sufficiently particular under the warrant requirement because it specifies the type of data to be looked for.
This is a deeply flawed argument. Each fork has a fatal flaw.
The first fork, the third-party doctrine, is based on Smith v. Maryland, a case involving noting the phone calls made by a single person over a limited time. The case was decided in 1979, before the break-up of the telephone monopoly, when calls were made infrequently and only for short durations, because of the expense involved. In-person visits were often cheaper than phone calls, and all phone calls were made from landlines at specific locations. The rule itself holds that no one has a privacy interest in records held by other people.
But, as the Court held recently in Riley v. California (2014), even rules that have pre-existed the warrant requirement itself, in this case the search incident to arrest, can be limited by changing technology and social mores. In Riley, police searched through an arrestee's phone and found evidence of criminal activity. The Court ruled that the search was unconstitutional. What matters is why:
The police argued that complete searches of the property found on a person were common and unremarkable prior to the case, and that it should remain so, even for cell phones. But the Court held that the volume of information and the degree of material revealed changed the calculus. It was possible that someone could be carrying their diary, several photo albums, and a half-dozen video tapes, but the idea is absurd. But that is normally the case with someone's cell-phone.
If a rule from before the Fourth Amendment can be modified as a result of unprecedented technology, how can a rule from thirty-six years ago be immune?
Especially since the arguments would be similar to Riley. People contact each other with phones every day for multiple times a day, so often that, from the records alone, it is possible to learn large amounts of a person's life from them. It's even possible to track their movements.
McCarthy briefly touches on the "exceptions" to the third-party rule as well, for attorneys, doctors, and priests. But the only things that those things have in common is that they were the only common third-party records at the time of the Founding, and that they are extremely revealing of the people they relate to.
That second one applies to modern phone records.
His second argument, that there's enough particularity to avoid it being a general search, is facially ridiculous. The problem that people have with the NSA's program is that it acquires all the phone data it can. If it was limited to terror suspects, nobody (nor I) would care. But it's not, the program is predicated on acquiring the maximum amount of information possible, in order to find "patterns" and provide post-attack records of contacts.
To claim that acquiring for all of a particular class of information is not a general search is absurd. A general search is one not specific to individual locations or people. That's the text of the Fourth Amendment.
Finally, he mentions that the Second Circuit did not rule the program unconstitutional but that it only violated the statutory authorizations of the law. That itself is misleading. The Circuit ruled that the program exceeded the statutory authorization and therefore did not have to rule on the constitutionality of the program. That's standard jurisprudence.
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