"The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause."
Seems extremely narrow-scoped and with no terms defined. IIRC, the ongoing spying is not even warrantless - they're operating under a broad-scope warrant issued by FISC, so this bill would do absolutely nothing.
I believe the answer might actually be yes to that as well. Remember the NSA treats analysis (search) of information as different from collection of information.
Doesn't matter though, the proposed law talks about search of American phone records which the NSA is already forbidden (even with PRISM) from looking at.
In other words the new content of this law would be exactly zero, if that's all it purports to add.
Is it more likely than not that looking at all social graph info from phone records over an indefinite period of time will show evidence of terrorist activity? If so, probable cause is met.
What's lacking is particularity which is entirely missing in the text of that law.
Haven't you heard? The way they do it now is that the NSA secretly spies on people, and then they give the info to FBI, which now has "probable cause".
These guys are hellbent on finding every possible loophole in the Constitution, and (ab)using it to the extreme. They've forgot all about the spirit of the Constitution.
It must help that they have a Constitutional lawyer in office helping them discover all these loopholes. And here we thought that because he was a Constitutional lawyer, he was going to use that knowledge to uphold the Constitution. The joke's on us, I guess.
As someone without training in law, that wording seems extremely odd.
It seems like it is not a piece of legislation, but rather an interpretation of the amendment; where I thought that interpreting the constitution was the job of the court. If this wording works, than wouldn't it give Congress the ability to work around the constitution simply by passing laws saying that <insert clause here> shall be interpreted to make <insert law here> constitutional.
This bill would do absolutely nothing at all legally. Here is the operative part of the bill:
The Fourth Amendment to the Constitution shall not
be construed to allow any agency of the United States
Government to search the phone records of Americans
without a warrant based on probable cause.
The 4th is part of the Constitution. Congress cannot change its meaning with a mere bill. Changing the meaning requires a Constitutional amendment. So, no effect from Paul's bill as far as that goes.
The courts interpret the Constitution, and due to separation of powers, Congress can't tell the courts how to interpret it. So, no effect from Paul's bill here, either. Separation of powers also prevents Paul's bill from having any effect on the executive branch.
To make this sort of thing work, I think you'd have to go to the laws that actually created or authorized the agencies whose behavior you want to change, and amend those laws.
Can't you straighforwardly strike the "Fourth Amendment... construed" part and leave the core "no agency of the US government... [shall]"? Because that's be solidly in the purview of Congress. And my flimsy understanding of law is that, if SCOTUS were to look at this, they would do something like what I said -- respecting the intent of the legislature as closely as possible -- rather than throwing out the whole thing.
I think this bill isn't expected to pass anyway, so it makes sense if it's been optimized for rhetorical, not legal, power.
'waterphone' -- your comment history appears benign and helpful, I think you deserve to know you've been hellbanned. The automated filter on HN will hide your comments from most users. It is a waste of your time to comment if this is not fixed.
Thanks. I noticed, and it's been happening off and on, but prior to today, comments I was making were eventually being unhidden after a few hours. Not so today, it seems.
He's pandering to a simplistic interpretation of the Constitution. Back in 1979, the Supreme Court explained why searching phone records did not require a warrant or constitute a search under the 4th amendment.
That's what's significant about these recent disclosures and subsequent wave of interest. Informed people may not have found them surprising, but to say "what's the big deal?" is a mistake. The big deal is the state change in the political discourse.
What's politically expedient is taking advantage of embarrassments to an opposing party's administration. I disagree with you that this is action since it achieves nothing and wouldn't even achieve anything if it passed. It's the legislative equivalent of a photo op.
"What you’ve got is two programs that were originally authorized by Congress, have been
repeatedly authorized by Congress. Bipartisan majorities have approved them. Congress
is continually briefed on how these are conducted ... Congress has been briefed 13
times on the programs since 2009."
So why haven't any members of Congress spoken up about this program? Rand and Ron, where were you?
Rand and Ron? I'm reasonably confident they've been against this from the start (it's part of their core ideology), but Rand Paul was never on the secret Senate committee that was allowed to know about this, nor Ron on its House counterpart:
Congrats to Paul for titling a bill with the name of what it actually does, instead of these "Orphan and sick elderly relief act"s that end up doing 73 other things completely unrelated to orphans or the elderly.
Also congrats for such a small bill.
Both of these factors together lead me to believe that this is just grandstanding, and the bill has no chance of succeeding. But still, here's hoping other Congresspeople follow his lead and start making all bills like this: single issue, clear, readable legislation that the public can openly and clearly debate.
Until they ignore it, just like they ignored the Foreign Intelligence Surveillance Act. Or, in a secret legal opinion, construe "phone records" to not include mere metadata about whom called whom from where for how long.
You can't get around the need to identify the people attempting to circumvent the very explicit restrictions placed upon them and exclude them from the levers of power.
I applaud the attempt, but after reading the text of the bill, will this do anything? They obtained a court order authorizing this. Wouldn't it be better to make it illegal to issue broad warrants for large numbers of people and instead require one warrant per person?
Nothing will be curbing, you all think you have some level of control over this process but you don't.
Stop trusting people who don't have motivation not to mess with your life.
What happens to the people behind these debacles? Nothing, absolutely nothing; in addition, having them fired would just open up the position to more people who would make the same actions.
A state will always seek to expand, and you will always go lax and let them, it's best to just forego the whole pot of pain to begin with.
"The Fourth Amendment to the Constitution shall not be construed to allow any agency of the United States Government to search the phone records of Americans without a warrant based on probable cause."
http://www.paul.senate.gov/files/documents/EAS13699.pdf
("Fourth Amendment Restoration Act of 2013")