Senator Rand Paul (R-KY) is suing the federal government on behalf of everyone who has a mobile phone. For this, he should be thanked. Paul’s spirited opposition to the National Security Agency’s collection of Americans’ electronic communications, which his lawsuit seeks to curtail, is consistent with the ideals of individual liberty on which America was founded.
Even so, Paul’s lawsuit has been denounced as self-promoting and frivolous by his many detractors. Prominent among these is Andrew C. McCarthy, prosecutor and columnist of note. An accomplished man, worthy of respect, McCarthy is out where the buses don’t run on this particular issue. His defense of government surveillance has been eloquent and wrongheaded, much like his criticism of NSA opponents in general and Paul in particular.
Typical of our over-lawyered age, McCarthy offers a legalistic rejoinder that does violence to common sense. Specifically, he and other proponents of NSA surveillance point to the 1979 Smith v. Maryland case, wherein the Supreme Court ruled that telephone records belong to the phone company, rather than the person using the phone.
Consequently, the NSA’s collection of so-called metadata – records of which phone numbers call each other, for how long, etc. – does not trespass the Constitution’s Fourth Amendment prohibition of unreasonable searches, since these are property of a third party.
McCarthy displays this argument more brazenly than most, waggling the Smith precedent about in the breeze as though the sheer majesty of this court decision from the era of rotary phones completely overwhelms any modern dispute. With exasperation, he laments that he has not yet received an adequate response on this point, daring anyone to disagree with his cocksure reasoning.
Challenge accepted, Counselor.
In particular, McCarthy demands to know how phone records can be considered among the “persons, houses, papers, and effects” protected by the Fourth Amendment, in light of the Smith decision.
Even if one concedes the Smith decision to be so impeccable that it is beyond question, a phone record is nowhere near the same thing today as it was in 1979. McCarthy acknowledges this facet of the Paul suit, only to dismiss the personal, identifying nature of mobile phone use by saying the NSA “generally” does not seek cell-phone records, claiming “strict” rules require their decoupling from location information, and citing a Wall Street Journal report that the NSA collects only 20 percent of call data anyway.
This is at odds with other reports and defiant of common sense. Are we to believe that a massive government surveillance program, capable of electronic omniscience, ostensibly designed to stop terrorism, opts to focus on landlines, as though the next suicide bomber is waiting for orders beside the wall phone in his mum’s kitchen?
Even if that were true (and when have they lied to us before?), and the NSA “generally” eschews cell-phone records, the instances where such records are sought can identify your location, your personal and business contacts, and most or all of your private communications.
Today’s argument, therefore, is rather different from that of 35 years ago, such that while Smith may relate to the Paul suit, it is far from dispositive.
And Smith is, of course, not beyond dispute (or, as McCarthy puts it, “settled”), just as any decision can be revisited and revised. By McCarthy’s logic, for example, would a Supreme Court decision in 1973 mean that the right to partial-birth abortion is “settled”?
Indeed, in considering America’s legacy of liberty from its genesis to today, it is Smith that is the outlier.
That is, from the 1791 ratification of the Fourth Amendment, to the 1979 Smith decision, to the Paul suit of 2014, the first and the third are consistent in their respect for personal privacy, while the second is out of place.
Remember that the Fourth Amendment, as part of the Bill of Rights, represents the supreme law of the land, whereas the 1979 Smith decision is an interpretation thereof. Isn’t it just possible that James Madison had it right, but the Burger Court got it wrong?
That McCarthy will not even countenance this possibility reveals why ostensible conservatives like him (and, frankly, the publication for which he writes) are losing the support of personal sovereignty advocates across America.
Again and again, as the Bill of Rights itemizes negative liberty – things the government may not or must not do – its bias is toward maximizing individual freedom while thwarting the state’s ability to interfere. Whose actions are more consistent with that philosophy – Rand Paul’s or the NSA’s?
McCarthy’s willful blindness to this, preferring to re-state the Smith principle through ever more abstract analogies, evinces the disconnect between the modern legal caste and the plain sense of everyday people.
Moreover, his unblinking faith in the benign strength of the state and America’s security apparatus demonstrates why prosecutors often make poor interpreters of public policy (Chris Christie, please call your office).
Beyond the Smith precedent (which, as demonstrated, is far from the Hulk Hogan leg-drop finishing move he imagines it to be), McCarthy’s secondary arguments become weaker still. In what McCarthy calls a “devastating” admission, the Paul brief notes that the NSA program collects phone numbers, but not the names associated with them.
On what temporal plain do McCarthy and other NSA proponents reside, wherein our policy on phone record proprietorship remains “settled” from a few decades past Pennsylvania 6-500 and the space between getting a phone number and finding out who owns it is like the Great Gulf between the Old Testament Lazarus and the rich man in torment?
Are we to believe that, while the NSA can collect and track every phone number in the country, when it comes to finding out who each number belongs to, they will cluster at an impasse like the marching band at the end of Animal House?
Or do McCarthy et al. insist the NSA will stop short of applying names to collected phone numbers because, well, that’s what the rules say they should do?
In either case, the argument is preposterous, and it is dispiriting to see estimable men like McCarthy, Charles Krauthammer and others advancing it.
Remember, we are speaking of a program which, apart from its antipathy to personal privacy, has been found on a bi-partisan basis never to have thwarted a single terrorist plot.
In McCarthy’s case, it is not even that he favors the letter of the law over its spirit. Rather, he relies upon an outdated interpretation of the letter of the law to justify a willful disregard of its spirit.
Let us start from scratch, asking one simple and honest question: Do you believe the Framers of the Constitution, and particularly the Bill of Rights, would be content with the tracking and storage of the private communications of every American by the federal government?
In launching his lawsuit, Rand Paul is doing two things that are very American: suing, and standing up for freedom. The latter, at least, is worthy of commendation.
Theo Caldwell, an investor and broadcaster, can be contacted at email@example.com