Policy: National Security

Deputy AG on NSA spying: The Fourth Amendment does not apply

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Beltway Confidential,Justice,National Security,NSA,Ashe Schow,Surveillance

Testifying before Congress on Tuesday about the National Security Agency's collection of private American's phone records, Deputy Attorney General James Cole stated that, "Under the law, the Fourth Amendment does not apply to these records." He then cited a Supreme Court case that indicated "toll records, phone records like this that don't include any content are not covered by the Fourth Amendment because people don't have a reasonable expectation of privacy in who they called and when they called."

Cole is, sadly, correct. Andrew C. McCarthy, senior fellow at the National Review Institute, recently wrote that federal courts have consistently upheld the government's collection of phone records as those records belong to the phone company and not the individual who placed the call.

However, ask average citizens whether their phone records — even if it's just numbers and call duration — are the government's business and you'll get a resounding "no." It may be within the law to collect that data, but the potential for political targeting, without meaningful recourse, is still too great to ignore.

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