Andrew McCarthy is right about one thing: Our current Fourth Amendment jurisprudence improperly gives the kind of “metadata” the government has been collecting in bulk exactly zero constitutional protection. That’s a problem in itself. There’s no reason to think the framers of the Constitution intended the Fourth Amendment to be inapplicable to business records, and the shift away from protecting them in the early 20th century was, rather nakedly, justified on the grounds that it would render a modern expansive regulatory state infeasible.
This transition was completed by a pair of misguided Supreme Court decisions in the late ’70s, almost universally condemned by legal scholars, implausibly reasoning that simply by making use of technologies and services that generate records about our activities held by businesses, we abandoned any expectation that the government would not scrutinize those records.
I ask whether this passes the straight-face test: Do you really believe that a comprehensive list of every phone call and e-mail conversation you have, potentially including your physical location when you have it, or a list of every website you read and how often you visit, is effectively public information? Of course it isn’t. And the authorities used here were made palatable to the American people precisely by claiming that they were going to be used in a way that involved looking at the records of suspected terrorists, and perhaps those of people in direct communication with them.
If the government had directly said: We want authority to collect everyone’s records — and there’s no operational reason that this kind of collection would need to be secret, since you’re not “tipping off” any particular target — people would have rejected it.
In light of the massive and increasingly sensitive and detailed records held about us by our phone companies, Internet providers, and firms such as Google, what this really shows is that such lax protection — allowing records about literally every American to be obtained indiscriminately and in bulk — is simply no longer tenable.
Assertions that these invasions are somehow vital to protecting us against terrorism are exposed as false every time they’re seriously scrutinized — as was the case with the NSA wiretap program — and I suspect the government may find it has hit the limit of the American people’s credulity here.
— Julian Sanchez is a research fellow at the Cato Institute, where he focuses on issues of technology, privacy, civil liberties, and new media.