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.
So let’s say Senator Paul and I rob a bank together and we stash the money in my house. If the police break down my door without a warrant and seize the cash, prosecutors will not be permitted to use it as evidence against me because their trespass on my property violates my Fourth Amendment rights. But the courts will allow prosecutors to use the money as evidence against Senator Paul. The Fourth Amendment, even as expanded, gives him no property interest and no expectation of privacy in my home and the items located there, even if he has a significant personal interest in those items.
It comes as no surprise, then, that the Supreme Court has already pointedly rejected the gravamen of Senator Paul’s constitutional claim. In its 1979 Smith v. Maryland decision, the justices held that people have no expectation of privacy in the records of their telephone usage that are the property of another party.
Palpably aware that Smith is fatal to the lawsuit, Paul and Cuccinelli do not get around to mentioning it until page eleven, whereupon they cite it in a “but see” footnote. In the litigation biz, a “but see [fill in the case citation]” footnote or clause is how lawyers fulfill their ethical obligation to alert the court to precedent that is relevant (there’s that word again) and that cuts against some argument they are making. Generally speaking, you do not use a “but see” footnote for a Supreme Court ruling that destroys your case. Instead, you refrain from filing your lawsuit in the first place.
But what fun would that be? So Paul and Cuccinelli “but see” Smith and then desperately try to distinguish it from their case. They raise nine purportedly “stark” differences between Smith’s phone records and the NSA’s metadata collection. These can be succinctly summarized as follows: (a) the police had a particularized suspicion of Smith before they sought his data, and (b) nowadays the government is collecting a lot more data that can tell them a lot more things (e.g., whether a cell-phone number moves from place to place during a call).
None of these differences makes a difference, though. Whether a person has a cognizable privacy interest in some piece of property or information has nothing to do with whether the police have a legitimate interest in him. You either have a protected privacy interest in something or you do not. The police need particularized suspicion and judicial permission to collect that something only if you have such an interest. If you do not, the police do not need suspicion or permission — no more than I needed them before thumbing through the phone book when I was a prosecutor.
The Supreme Court reasoned that you do not have a privacy interest in third-party records of your phone usage because you well know that your usage information is not private. As the justices put it, at the time you make any call, you are knowingly “conveying” that information to the phone company. That rationale has nothing to do with whether you are a crime suspect. And that rationale does not change based on whether the government is collecting usage records for one phone number or for 300 million.
There is no cognizable property interest or expectation of privacy, so that is the end of the matter as far as the Constitution is concerned. It should therefore be the end of Senator Paul’s lawsuit. But, as discussed above, it does not settle the question of statutory legality, much less the question of whether the policy, even if lawful, is an excessive intrusion on privacy.
On the latter issue, the lawsuit’s wild overstatements about the NSA program are worth considering. Senator Paul has energetically misrepresented the NSA program as a monstrous dragnet that turns every American into a suspect. And, he adds, the controlling Smith case from over 30 years ago should be ignored because now we use cell phones — i.e., modern phone records reveal not only whom we call but where we travel. These points are hyperbole.
In fact, as the Wall Street Journal reports, the NSA is collecting records of, at most, 20 percent of U.S. calls. That is still a large number, but it is five times less than what Paul’s lawsuit claims (“all domestic and international calls”). And why is the data collection markedly smaller than what Paul alleges? Because the NSA generally does not seek cell-phone records. Thus, the program already addresses Paul’s expressed concern: Its strict rules require court permission before the NSA may collect location data. Removing that data from cell-phone records is problematic, so the NSA does not bother with those records.
More significantly, the lawsuit makes a devastating concession . . . if you’re willing to wade all the way through to paragraph 22. There, Senator Paul and Mr. Cuccinelli acknowledge that inquiries of the database in which collected records are maintained “do not identify the individuals or organizations associated with responsive telephone numbers.” Translation: You are not in the NSA’s database; your phone number is.
There are no names and addresses, no personal identifying information. What Senator Paul depicts as a Stasi dragnet does not even know you exist. As paragraph 22 further admits, to get identifying information, investigators would have to go “outside” the NSA program by “cross-check[ing] against other public records.” That is, you are not being monitored at all.
Let’s say al-Qaeda emir Ayman al-Zawahiri decided to give John Doe a ring. Assuming Zawahiri were foolish enough to call John Doe’s landline, the metadata program would not tell the NSA he had called John Doe or where John Doe was at the time. It would just report John Doe’s phone number. Of course, because we have the metadata program, the NSA could instantly find out what number John Doe’s number telephoned after Zawahiri’s call. It could thus start mapping a terror cell planning to kill Americans. But the point is that it would have to go outside the metadata program to identify the persons attached to the phone numbers.
By itself, the NSA’s metadata program cannot even track the people in direct contact with known terrorists. If your phone number is never called by a terrorist suspect, the metadata program will not even register your existence, let alone spy on you.
The NSA programs deserve serious scrutiny. Senator Paul’s lawsuit deserves short shrift.
— Andrew C. McCarthy is a senior fellow at the National Review Institute. He is the author, most recently, of Spring Fever: The Illusion of Islamic Democracy.