Rand Paul on domestic surveillance: Strengthen the Fourth Amendment

Rand Paul

The solution to the National Security Agency’s broad domestic surveillance apparatus, according to Sen. Rand Paul (R-KY), is to pass legislation applies Fourth Amendment protections to third-party records.

“I would like to apply the Fourth Amendment to third-party records,” said Paul, referring to the NSA’s bulk data collection programs, which includes obtaining records of Americans’ phone calls. “I don’t think you give up your privacy when someone else holds your records. So, when I have a contract with a phone company, I think those are still my records. And you can look at them if you’re from the government if you ask a judge.”

The comments came during an appearance on Fox News Sunday. Paul also disputed the legality of what the NSA is doing, arbitrarily collecting these records, even if they don’t in anyway relate to actual investigations into terrorist activity. He also said that the Supreme Court needs to take a look at the issue of privacy.

“[T]he most important thing is, a warrant applies to one person. A warrant doesn’t apply to everyone in America,” Paul told host Chris Wallace. “So, it’s absolutely against the spirit and the letter of the Fourth Amendment to say that a judge can write one warrant and you can get every phone call in America. That’s what’s happening.”

“I think it’s wrong. It goes against everything America stands for,” he said. “And I will help to fight that all the way to the Supreme Court. And we need the Supreme Court to re-examine privacy, the Fourth Amendment and our records.”

The Supreme Court recently declined an emergency request by the Electronic Privacy Information Center to hear a case over the NSA’s bulk data collection programs, meaning that the lawsuit the organization filed will have to work its way through lower courts.

The intelligence community is had justified the programs based on 1979 Supreme Court decision and a secret interpretation of Section 215 of the USA PATRIOT Act, which was passed shortly after the 9/11 terrorist attacks.

Intelligence agencies insist that the decision Smith v. Maryland means that Americans have no reasonable expectation of privacy when it comes to third-party records and metadata. The decision, however, doesn’t actually say that. Moreover, the decision is 34-years-old, meaning that it’s completely out-of-date for the Digital Age.

What’s more, the authority given in Section 215 of the USA PATRIOT Act states that law enforcement agencies can only seize third-party records related to suspects under investigation for terrorism.

The kind of blanket authority that the NSA has claimed undermines the Fourth Amendment, which was written specifically to prevent this sort of invasion of personal privacy.

The founding generation experienced the dangers of general warrants, which allowed British authorities to search their homes and effects whenever they so desired. James Otis, who presented merchants during a legal challenge to general warrants in 1760, called them the “worst instance of arbitrary power.” John Adams once said that Otis’ fight against general warrants sparked the push for independence from Great Britain.

Paul said that he is “for going after terrorists with every tool we have” and is “not opposed to the NSA.” But he supports the principles behind the Fourth Amendment.

“[I]f we think someone’s a terrorist, you call a judge. You get a warrant. If that person’s called 100 people, you get 100 more warrants. If they’ve called 10,000 people, you got to get 10,000 individual warrants,” Paul told Wallace. “And it’s a pain. But it’s a pain because we’re trying to protect people’s freedom. We’re trying to protect the Bill of Rights.”

“That’s what we’re fighting against terrorism to protect. So, we can’t give up the Bill of Rights in order to try to fight terrorism. You have to keep your privacy. You have to keep the Bill of Rights,” he added.

Paul has co-sponsored legislation offered by Sen. Ron Wyden (D-OR) would restore the Fourth Amendment and would rein in the NSA’s domestic surveillance programs.

H/T: National Review

The views and opinions expressed by individual authors are not necessarily those of other authors, advertisers, developers or editors at United Liberty.