In what looks more like a publicity stunt than a serious legal challenge, Senator Rand Paul has filed a class-action lawsuit against President Obama and other top executive-branch officials, claiming that the National Security Agency’s metadata-collection program violates the Fourth Amendment.
The suit is no surprise. I’ve previously noted that, despite his “constitutional conservative” branding, Senator Paul can sound just like a “living Constitution” progressive when it suits him: He finds the data collection offensive, so ipso facto it must be not only unwise policy but a violation of fundamental law. I am surprised, though, to find former Virginia attorney general Ken Cuccinelli lending his name to the effort. Like Senator Paul, Mr. Cuccinelli is very sound on many things and was particularly strong in arguing the unconstitutionality of Obamacare. But he is all wet on this one.
Let’s get something straight from the start: It is true that the NSA’s program may be illegal. But that has nothing to do with the Constitution. It is a question of compliance with Section 215 of the PATRIOT Act, the statute pursuant to which the data collection takes place.
As I’ve explained
before, that question turns on the interpretation of the word “relevant” as used in the statute, meaning: Is the collection relevant
to investigations to prevent international terrorism? (And when I say “collection,” I am referring to what the NSA is actually doing, not to the distortion offered by Senator Paul — a distinction I will examine in due course.)
This statutory “relevance” question is a close call. I am persuaded that the information collected is relevant. More important, the collection has been found relevant and thus lawful by 15 different federal judges. Those judges, appointed by administrations of both parties, now sit on the Foreign Intelligence Surveillance Court — a tribunal that, as I’ve recounted, is far from a rubber stamp. They permitted the metadata collection only after applying longstanding precedents about “relevance” (a frequently litigated issue) to this Bush-era statute.
Nevertheless, as I’ve also conceded, there is a very colorable argument that the statute has been violated. If Senator Paul and Mr. Cuccinelli were contending that the number of U.S. phone calls bearing on international terrorism is so infinitesimal that the vast majority of phone records — i.e., almost all the metadata — must be irrelevant, that claim would command attention. After all, the NSA’s collection effort goes beyond the examples of relevant intelligence gathering set forth in Section 215 (although, as I’ve explained, the statute makes those examples instructive, not exclusive).
That, however, is not what Paul and Cuccinelli are claiming. They assert that the metadata collection runs afoul of the Fourth Amendment. That claim is specious.
I keep asking a simple question. No answer from Senator Paul so far, but I’ll keep trying. By its straightforward terms, the Fourth Amendment protects Americans from unreasonable searches of “their persons, houses, papers, and effects.” The metadata records collected by the NSA are not even Senator Paul’s own property; they belong to various phone companies (to whom the court’s Section 215 production orders are directed). So if we’re going to be constitutional conservatives — you know, faithful to the original meaning of the Framers’ handiwork — exactly what part of Senator Paul’s person, house, papers, or effects are business records that belong to a third party, not to him?
No part, of course. What is confirmed in Senator Paul’s lawsuit is that he is not relying on the original Fourth Amendment but on the kind of “organic” judicial hocus-pocus that self-styled constitutional conservatives purport to reject — in this instance, the “expectation of privacy” test. Paragraph 16 of the lawsuit avers that Paul and other people who make phone calls “hold subjective expectations of privacy over their collected, retained, and searched telephone metadata.”
I have highlighted “their” to underscore how wrongheaded Senator Paul’s claim is from a Fourth Amendment perspective. The records in question are not their property; the records belong to the phone companies. To be sure, the records kept by Senator Paul’s service provider regarding usage of Senator Paul’s phone are about him; but they are not his property.
The Fourth Amendment is about personal property rights — specifically, preventing government from trespassing on the four aforementioned categories of intimate personal property (again: your person, house, papers, and effects). You have no rights in other people’s property. If you keep a journal and write notes about Senator Paul in it, the Fourth Amendment gives him no protected interest in your journal.
That is a settled doctrine of Fourth Amendment law. It endures despite the “expectation of privacy” addendum that the Supreme Court grafted onto the original Fourth Amendment beginning in the 1960s. This more elusive privacy protection was added to the concrete protection against trespass in order to address concerns about technological advances that enable government to intrude on your property without a physical trespass — e.g. to conduct electronic or thermal surveillance from a remote outpost, monitoring your voice communications or activity inside your home. But to implicate the Fourth Amendment, it still had to be your personal property, not someone else’s.