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.