The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. ~ Justice Brandeis
Senator Rand Paul has real principles, and Sunday he held on to them in the face of fierce opposition. By remaining steadfast, Kentucky’s junior senator won a temporary victory for his cause – he halted the renewal of portions of the Patriot Act.
Senator Paul’s Republican critics claim he is playing politics with national security. They are wrong. For Mr. Paul the issue transcends politics, he wants to limit the federal government’s power. This freedom-first perspective is not without precedent. In 1791 the Bill of Rights unambiguously constrained the federal government’s power to search places and seize evidence.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In light of the language used in the forth amendment, Rand Paul’s constitutional concerns are quite reasonable. The question that remains one of extent. How far can the government go to ensure national security? Is the warrantless collection of phone meta data constitutional? If casting a wide net is constitutional, should congress give investigators access to such a tool? These serious questions deserve our sincere attention; sadly they frequently fail to receive it.
The Patriot Act’s most ardent supporters often eschew serious constitutional questions in favor of oversimplified talking points. Government surveillance is justified because national security is very important. Security-first pundits and politicians bolster their case for meta data collection by pointing out that the U.S. Postal Service has photographed most of the mail it has processed over the last 14 years. Thus they claim the clamor over phone data collection is much ado about a settled question. Unfortunately for surveillance hawks, all data is not equal.
There are three critical differences between the practices of the US Postal Service, and the driftnet collection of phone meta data. First, hundreds of thousands of parcels pass through the hands of private businesses (e.g. UPS), and are consequently immune to government photographs. Second, as of 2013 there was no central database of Post Office photographs. Third, a snapshot of an envelop or package arguably offers less intimate information than phone meta data. Photographing mail and collecting phone meta data are not interchangeable practices, and should not be closely compared.
If the fourth amendment is outdated, advocates of government surveillance should advance a constitutional amendment to clarify the government’s national security powers. Regrettably, many of Rand Paul’s political opponents have cynically chosen to vilify him for his principles instead.
When the debate over the provisions in question reaches its inexorable conclusion, Mr. Paul will likely have lost. But hopefully Senator Paul’s principled stand will encourage more Americans to reconsider the extent of the government’s power.