Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting: It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar; and Peter Swire, a privacy-law expert who also worked in the Clinton administration. I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel…
Many fans of HBO’s acclaimed crime drama The Wire will cite as a favorite moment a scene in which Baltimore drug kingpin Stringer Bell attempts to increase the professionalism of his gang by running its meetings by parliamentary procedure. When one of his soldiers dutifully begins to take minutes in accordance with Robert’s Rules of Order, Stringer, exasperated, shouts “Is you taking notes on a criminal ****ing conspiracy?” The scene exemplifies one of the show’s most lauded attributes: despite the numerous murders under the belts of most of its major drug-dealing characters, the nuance of their portrayals allows for moments…
My 10-year-old, fruit of my own loins, came home from fifth grade on Constitution Day to announce that his teacher could no longer demand his homework because the Fourth Amendment entitled him to be “secure in his documents.” This, like all sensitive situations, was to be handled with a degree of delicacy: interest in the Constitution to be celebrated, fallacies about it to be clipped before flowering.
“Did you read the Constitution in school?’
“Yeah.” Pause. “Well, we read the Bill of Rights.”
Randy Barnett has an interesting op ed in the Wall Street Journal arguing that the NSA’s seizure of voluminous data on U.S. citizens was unconstitutional and that the approval of the seizure by the secret FISA court was also unconstitutional.
Randy makes several important points:
1. “By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call ‘informational privacy.’”
2. The FISA Court’s approval of the “blanket seizure of data on every American” represents “indiscriminate data seizures” that “are the epitome of ‘unreasonable,’ akin to the ‘general warrants’ issued by the Crown to authorize searches of Colonial Americans.”
3. The program’s approval by the FISA Court violates due process, because “secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.”
These are powerful arguments and the entire essay is well worth reading. I am not entirely sure if Randy is using an originalist methodology here. If so, here are my thoughts regarding each of his three points.
One of the comments to my earlier post on the Fourth Amendment was interesting:
These records are the modern equivalent of papers and effects. Excluding these records from the protection of the Fourth Amendment is as logically sound as excluding Internet and telephone and television communications from the protections of the First Amendment or excluding any firearm more advanced than a flintlock-actuated black powder muzzle-loader from the protections of the Second Amendment because these things were not even dreamed of by the framers of the Constitution.
This is interesting, but I don’t agree.
I think one’s cell phone is an effect. And so a search of the phone is certainly covered by the Fourth Amendment. But I don’t think the phone records of the cell phone company are effects. One need not consider modern circumstances to answer that question. The cell phone records are like a record by a ship owner in 1787, listing the property that people had brought on the ship. This record is unlikely to have been deemed the effect of the property owners (although it would be a paper of the ship owner).
The best case for treating the records as an effect is if there were a private contract between the customer and the phone company that required the records to be kept private. If the contract provided that the records were the property of the customer, held in custody by the phone company, then that would probably make them an effect. If there were merely a contractual right for the records not to be released, that might make them an effect, but it is not clear.
1. The collection of citizen’s phone records is a violation of the natural rights of every man and woman in the United States, and a clear violation of the explicit language of the highest law of the land.
2. The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause.
McCarthy first questions sarcastically whether people have natural rights to privacy as to their phone records (“A citizen’s “natural right” to telephone-usage records that are actually the property of third-party service providers? I wonder what Saint Augustine would have made of that.”) I am skeptical of natural rights, but putting that to the side I think McCarthy is on weak ground here. There is no reason to believe that natural rights would not apply to modern technology. That the records are the property of third party service providers is a better point. But in a world where it mattered who owned the records, perhaps people would insist on a contractual right to privacy in their records, which might change things.