Randy Barnett has an interesting op ed in the Wall Street Journal arguing that the NSA’s seizure of voluminous data on U.S. citizens was unconstitutional and that the approval of the seizure by the secret FISA court was also unconstitutional.

Randy makes several important points:

1. “By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call ‘informational privacy.’”

2. The FISA Court’s approval of the “blanket seizure of data on every American” represents “indiscriminate data seizures” that “are the epitome of ‘unreasonable,’ akin to the ‘general warrants’ issued by the Crown to authorize searches of Colonial Americans.”

3. The program’s approval by the FISA Court violates due process, because “secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.”

These are powerful arguments and the entire essay is well worth reading.  I am not entirely sure if Randy is using an originalist methodology here.  If he is, here are my thoughts regarding each of his three points.

1.  While Randy treats the cell phone records as a person’s papers, I am not so sure.  I previously discussed whether they were an effect (which is a similar point):

But I don’t think the phone records of the cell phone company are effects.  One need not consider modern circumstances to answer that question.  The cell phone records are like a record by a ship owner in 1787, listing the property that people had brought on the ship.  This record is unlikely to have been deemed the effect of the property owners (although it would be a paper of the ship owner).

The best case for treating the records as an effect is if there were a private contract between the customer and the phone company that required the records to be kept private.  If the contract provided that the records were the property of the customer, held in custody by the phone company, then that would probably make them an effect.  If there were merely a contractual right for the records not to be released, that might make them an effect, but it is not clear.

Interestingly, Randy suggests that cell phone customer contracts do not allow their disclosure to the government.  In that case, as I said above, that might make them an effect.

2.  Assuming that the records are effects, I am very sympathetic with Randy’s argument that the blanket seizure of the data represents a general warrant.

3.  I find interesting Randy’s claims that secret judicial proceedings violates due process.  But the ultimate question here is probably whether such proceedings existed at the time of the Constitution’s enactment, and if so, in what situation.  I am not aware of any situation where the judicial opinions were classified.

This post was originally published at The Originalism Blog, and is re-posted here with permission from the author.

Michael Rappaport

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