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.