Does The Mass Collection Of Phone Records Violate The Fourth Amendment?

It may be too clever by half, but maybe the collection of phone data wasn't really a search or seizure? Maybe it's a "reasonable" search?

Not to get all originalist, but isn’t “government collecting evidence at random based on vague suspicion” exactly the scenario that the Framers of the Bill of Rights feared? Liberals — or at least liberals outside the White House — generally agree on this. Even conservatives are on board with this one. However, there is an alternative view. It may be too clever by half, but maybe the collection of phone data wasn’t really a search or seizure? Maybe it’s a “reasonable” search?

Some very smart people try to make the case that gobbling up phone data on all of us isn’t really a constitutional case. Let’s see if they convince you…

Intelligence Squared held a debate on exactly this topic. If you’ve never checked out Intelligence Squared, I highly recommend it. Imagine a televised argument, except instead of sound bytes spewed by yelling heads, accomplished experts calmly and rationally hash out the issues with enough time to guarantee that nuance isn’t sacrificed to make time for another commercial.

In this debate, Alex Abdo, ACLU Speech, Privacy and Technology Project Staff Attorney, and Elizabeth Wydra, Chief Counsel of the Constitutional Accountability Center, defended our Fourth Amendment rights against the NSA. Meanwhile, Stewart Baker, formerly of Homeland Security and the former General Counsel of the NSA, joined Professor John Yoo, who famously declared that judges aren’t good enough to understand the Fourth Amendment, to argue that we should all feel a lot more comfortable with our data being captured.

Did Baker and Yoo convince you? If so, you were an easier sell than the audience, who opted for Abdo and Wydra by a 2 to 1 margin.

Sponsored