Avatar of admin


How Rand Paul Can Take on the NSA

June 11, 2013 in Economics

By Julian Sanchez

Julian Sanchez

Senator Rand Paul is itching to challenge the constitutionality of the National Security Agency’s surveillance practices before the U.S. Supreme Court, and the American Civil Liberties Union has already filed such a suit. Justice Sonia Sotomayor might be glad to see them both there.

Specifically, Paul, a Kentucky Republican, has pledged to spearhead a class-action lawsuit against the NSA on behalf of the millions of Americans whose phone and Internet activity logs have been vacuumed up under sweeping Patriot Act orders for “business records.” Yet the NSA program’s defenders insist it’s entirely legal — that the Constitution doesn’t even protect these records, making any court challenge a nonstarter.

The terrifying thing is they may be right, which means we need to seriously rethink how the Fourth Amendment works in the 21st century.

Simply by using modern technology, Americans have — for the most part unwittingly — abandoned the Fourth Amendment’s protection for a vast and growing portion of their intimate activities.”

This isn’t to say that the bulk surveillance on the scale we have been hearing about is currently lawful under federal statute. The Republican author of the Patriot Act, Representative Jim Sensenbrenner of Wisconsin, says these spying practices exceed the authority Congress intended to give intelligence agencies. It hadn’t imagined that a power to obtain records relevant to specific investigations would be used to demand daily copies of every American’s information, just in case it proves relevant in the future.

General Warrants

Moreover, an entirely different section of the law provides authority to monitor future calling activities, as these orders do. But that provision is more explicitly limited to monitoring a specific list of individual targets, phone lines or online accounts — which makes the use of business-records powers to obtain the data in bulk seem like an effort to dodge those limits.

But what about the Fourth Amendment’s guarantee of “the right of the people to be secure” against “unreasonable searches and seizures”? Aren’t universal orders for phone and Internet logs precisely the kind of “general warrant” that inspired so much fear and loathing in the Framers of the Constitution?

Unfortunately, as the NSA dragnet’s defenders are quick to point out, that’s not how the Supreme Court sees things. In its earliest Fourth Amendment decisions, the court held that business records were as protected as any other private papers. But as the modern regulatory state grew in the early 19th century, the court changed its tune — not because there …read more

Source: OP-EDS

Leave a reply

You must be logged in to post a comment.