The Cato Institute’s Julian Sanchez helps Americans understand how the Fourth Amendment must be bolstered to protect Americans from an ever encroaching government.
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.