More on Andrew McCarthy and the Proposed NSA Reforms

In my prior post, I criticized Andrew McCarthy’s criticisms of the proposed reforms of the NSA programs. Here I offer a couple of additional thoughts on McCarthy’s criticisms.

McCarthy argues that the Framers would not have wanted the courts reviewing national security decisions, such as whether the executive had a good-faith national-security purpose for the search. But as I noted in my prior post, the Constitution through the Fourth Amendment authorizes the courts to make these decisions if a citizen is being searched as to his home or other place within the scope of the Fourth Amendment.

McCarthy appears to want to distinguish these cases from the NSA programs by claiming that the NSA programs do not effect constitutionally protected searches. While that may be true under existing Supreme Court precedent, he makes a claim about the Framers and that raises different questions. Two Supreme Court doctrines suggest that these searches do not implicate the Fourth Amendment. One is the third party doctrine, which suggests that records held of phone calls by a cell phone company are not protected by the Fourth Amendment. Another is the related doctrine concerning metadata, such as your phone number or the phone number you called, that asserts such data are not protected by the Fourth Amendment.

But it is not clear whether these doctrines conform to the original meaning. And even if they conform under existing practices, it is not clear whether they would conform under possible changes in practices. For example, let’s say that people started to insist on a clause in their contract with the phone company that said that the information concerning who they called remained their property. In that event, one might say that this information was constitutionally protected as people’s effects or even their papers.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. gabe says


    Ok, so i understand your point. However, we must remember that people have NOT insisted upon such a “retention” clause in their contracts; so, although i hate to be one support judicial precedent, i do not seem to have any other choice at THIS point.

    Also, suppose customers were to insist upon such a clause and that the communication companies denied this. Other than standard competition issues, what recourse would the customer have? surely, you would not want the Courts to decide what will be contractually acceptable in this regard.
    After all, my home address, amongst other items, is a matter of public record; as is my drivers license, license plates etc.
    What is to be done (Oops, I don’t wish to sound Leninist).

    take care

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