The notorious “civil rights” lawyer William Kunstler, in addition to his work on “political” cases (i.e., anti-American radical-leftist and terrorist cases), gladly made himself available to mobsters, too — after all, someone had to pay the bills. Invited to a dinner once after a job well done for a mafia don, he hoisted a glass to the assembled capos and button men, toasting them, “Here’s to crime!”
Gleeful crooks across the country could be giving the same toast if Senator Rand Paul gets his way. The self-styled libertarian Republican from Kentucky, firmly in his father’s tradition of overreaction to imagined constitutional violations (or, perhaps I should say, violations of an imaginary Constitution) is outraged by reports that the Defense Department’s National Security Agency (NSA) is collecting “metadata” on phone calls of millions of Americans. He has responded by introducing an absurd piece of legislation he calls the “Fourth Amendment Restoration Act of 2013.”
Not content to contort natural law, Paul then works his magic on positive law. He alleges that collection of records of telephone activity (but not the content of phone conversations) is somehow “a clear violation of the explicit language of the highest law of the land.”
By “highest law of the land,” Paul is referring to the Constitution’s Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.” Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it.
In last year’s United States v. Jones decision, Justice Scalia explained (not for the first time) that the animating idea behind the original Fourth Amendment is protection of personal property. The Constitution was not deemed to be violated absent some form of government trespass. That is why, under the Fourth Amendment as originally understood, it would be a violation for police, without a valid judicial warrant, to attach a GPS tracker to a person’s car and monitor his movements (the situation in the Jones case). On the other hand, it would not be a violation to wiretap a person’s conversations by physically attaching a monitoring device to the phone company’s line on a public street, without any entry into the person’s home or trespass on his property. (See Olmstead v. United States .)
This changed because the Supreme Court deviated from the original Fourth Amendment’s bright-line focus on the physical person and his property to embrace the vague concept of “reasonable expectation of privacy.” The original Fourth Amendment preserved the proper constitutional order: It instructs us on what the government must protect, while the people’s representatives in Congress are free to enact additional safeguards beyond this irreducible constitutional guarantee. By contrast, were we to rewrite the Fourth Amendment consistent with its modern understanding — assuming the written word means anything when we could evolve again at any moment — it would say: “The right of the people to be secure in whatever expectations of privacy we judges think are reasonable shall not be violated.”
Unfortunately for Senator Paul, even this new Fourth Amendment that progressives have erected on the remains of the original one has never protected third-party business records. That, in particular, includes “metadata” — customer telephone activity (not the content of conversations, but numbers dialed, time and duration of calls, etc.), records of which are maintained by service providers.
To give such third-party business records constitutional status, Senator Paul would have to get the judges to invent a newer, more expansive Fourth Amendment. So could we please drop the bunkum about how Senator Paul and his anti-government followers are “constitutional conservatives” crusading to “restore” the Fourth Amendment? If Senator Paul were actually trying to “restore” the Fourth Amendment, he’d be calling not for phone-usage records to be shielded from government but for phone conversations to be more easily monitored by government.
Besides its other demerits, Paul’s proposal is an exercise in naked partisanship. Indications are that the collection of telecom metadata began during the Bush administration. Yet, Senator Paul’s bill states: “Media reports indicate that President Barack Obama’s Administration has been collecting information about millions of citizens within the borders of the United States and other countries.” Republicans are quite right to point out that the Obama administration has abused its powers in several contexts; they are equally right to complain that President Obama’s default position when something goes wrong (as it often does with his administration) is to blame President Bush. It is sheer hypocrisy, though, to pretend, as Paul’s bill does, that telephone-metadata collection is an Obama innovation. It started as a Bush program, rooted in the PATRIOT Act’s business-records provision, which was strongly and appropriately supported by Republicans.
Moreover, it is equally wrong to imply, as Paul’s bill does, that the metadata collection is of a piece with other scandals involving Obama’s abuses of power. As Senator Paul well knows, the IRS scandal, spying on the media, Benghazi, Fast & Furious, etc., involve unilateral executive-branch lawlessness, stonewalling, and/or overreach. In contrast, the ongoing phone-record collection is the lawful, statutory retention component of a program with extensive civil-liberties protections. Significantly, these protections prohibit the government from inspecting the retained records without judicial approval based on a demonstration of reasonable suspicion of terrorist activity.
Perhaps the worst aspect of Paul’s irresponsible proposal is how it would cripple law enforcement.
In its précis, the bill professes its objective “to stop the National Security Agency from spying on citizens of the United States.” That in itself is ridiculous — the NSA is not “spying” on Americans; again, it is lawfully retaining records that it is not permitted to sift through absent court approval — in a program that also includes an exacting regimen of legislative oversight. But that’s not the half of it. After Paul gets through bloviating about natural rights and botching the Fourth Amendment, his bill gets down to brass tacks. The target is not merely the NSA but the entire government. The proposed law states: “The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search phone records of Americans without a warrant based on probable cause” (emphasis added).
Hate to break this to you boys and girls, but “any agency of the United States Government” includes the FBI, the DEA, and every other agency performing everyday law enforcement — the police work that provides law and order, without which there can be no liberty. I do not know what, if any, familiarity Dr. Paul has with how law enforcement works, but it would be next to impossible for police to make cases against organized-crime groups, drug cartels, and other large-scale criminal enterprises if they had to have probable cause of crime before they could obtain phone records.
Records of telephone usage are not constitutionally protected under any credible construction of the Fourth Amendment — not the original Fourth Amendment described and applied by the Supreme Court in the aforementioned Jones case, not the Fourth Amendment as enlarged by the “reasonable expectation of privacy” jurisprudence beginning in the mid 20th century. As a result, criminal investigators and grand juries routinely obtain telephone-usage records by issuing subpoenas and applying for “pen registers” — devices applied to phone lines that enable investigators to learn the time, duration, and subscriber numbers involved in telephone calls. This information, coupled with physical surveillance of suspects, is typically how police build probable cause that crimes are being committed. They need to meet that threshold because the Fourth Amendment has always protected a person’s property, and our jurisprudence (along with federal statutes) extends this protection to the content of telephone conversations and other electronic communications. Consequently, to search property or monitor conversations, police must obtain search or eavesdropping warrants.
If, as Senator Paul proposes, law-enforcement agencies had to have probable cause before they could get telephone-usage records and pen registers, there would be far fewer search and eavesdropping warrants. Were that to happen, the most culpable, most insulated members of criminal organizations could no longer be penetrated by investigative techniques that police have been using, lawfully and with great public support, for decades — for as long as there have been phone records. The most efficient, most threatening criminal organizations would operate with impunity.
Perhaps he does not realize the ramifications, but Senator Paul’s proposal will not protect Americans. Our prosperity hinges on effective law enforcement. We have thus derived great benefit, and suffered little discernible harm, from the fact that police have long been permitted to acquire third-party phone records without a warrant. The Paul proposal is, instead, a boon for lawbreakers. That it should be proposed under the guise of a “Fourth Amendment Restoration” is perverse.
Here’s to crime!