Over a decade ago, when announcing that I would file a lawsuit challenging the constitutionality of the National Security Agency’s once-secret program to collect all Americans’ cell phone data, I said, “Our Founding Fathers objected to general warrants that allowed soldiers to go from house to house searching homes of American colonists [and] I think they would be equally horrified by a government that goes from phone to phone collecting data on all Americans.”
A year later, in 2015, I spoke for 10 and a half hours on the floor of the Senate to highlight the dangers of domestic surveillance and said, “There comes a time in the history of nations when fear and complacency allow power to accumulate and liberty and privacy to suffer.” In 2023, when I forced a vote to remove domestic spying authority that had been added at the last minute to the National Defense Authorization Act, I pointed out that the government’s long train of surveillance abuses included spying on Martin Luther King and Vietnam War protestors.
After years of fighting to protect our constitutional rights against the surveillance state, I was still shocked, though perhaps not surprised, to learn that Special Counsel Jack Smith, who was appointed to investigate Donald Trump, seems to have misused grand jury subpoenas to spy on nine Republican members of Congress by obtaining their phone records.
Ironically, some of these members who were spied on by Jack Smith have opposed my efforts to limit the powers of intelligence agencies to the confines of the Fourth Amendment’s protection against unreasonable searches.
The surveillance conducted on these members of Congress would have indicated when and to whom a call was made, the duration of the call, and the general location of where the call was made. This information is exactly the kind of information I warned would be abused.
These grand jury subpoenas likely violate the conclusions of the Supreme Court. This abuse of power should not go unchecked.
In Carpenter v. United States, the Supreme Court ruled that people have a privacy interest in their geo-location information or their whereabouts and that government requests for a person’s geo-location should require evidence of probable cause or a warrant consistent with the Fourth Amendment.
Chief Justice Roberts wrote in the majority opinion: “The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”
The majority ruled that one’s geo-location from cell phone metadata was, indeed, a legitimate privacy interest.
Robert’s decision explains that, “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”
The Roberts opinion responded to a dissent from Justic Alito: “the [Alito] dissent should recognize that CSLI [cell site location information] is an entirely different species of business record – something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers.”
Before the Carpenter decision, records held by third parties typically were not given full Fourth Amendment protections. The majority opinion in Carpenter, however, states that a current understanding of what is equivalent to one’s papers and effects has changed in the digital age such that: “If the third-party doctrine does not apply to the ‘modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’’ then the clear implication is that the documents should receive full Fourth Amendment protection. We simply think that such protection should extend as well to a detailed log of a person’s movements over several years.”
Thank you to Kash Patel and the Trump administration for exposing this abuse of power. If the government is willing to ignore the Fourth Amendment rights of members of Congress, imagine what they might do to an ordinary citizen. Good riddance to the fired FBI agents who violated the Fourth Amendment rights of nine Republican members of Congress.
As more details emerge, it will be interesting to see if any of the phone companies resisted or filed motions to quash any of these illegal subpoenas. If the phone companies did not make any attempt to fight these spurious subpoenas, it will be important to find out of liability attaches to them for not protecting their customer’s Fourth Amendment rights.
The protection of constitutional rights is not, however, the exclusive domain of the courts. Over the years, I offered several proposals to safeguard constitutional rights, including ensuring that Americans are not subject to spying ordered by the secret Foreign Intelligence Surveillance Court, and ending the government’s ability to circumvent the Fourth Amendment by buying Americans’ personal information from data brokers.
Hopefully, meaningful reform is possible now that members of Congress see that the eyes of the surveillance apparatus they unquestionably supported could be trained on them. They can’t say I didn’t warn them.
Rand Paul is a United States Senator from Kentucky.
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