The Daily Caller

The Daily Caller
Republican Kentucky Sen. Rand Paul arrives for the Republican weekly policy luncheon on Capitol Hill in Washington Jan. 28, 2014. (REUTERS/Joshua Roberts) Republican Kentucky Sen. Rand Paul arrives for the Republican weekly policy luncheon on Capitol Hill in Washington Jan. 28, 2014. (REUTERS/Joshua Roberts)  

Rand Paul’s righteous NSA lawsuit

Photo of Theo Caldwell
Theo Caldwell
Investor and Broadcaster

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”?