Rand Paul's new bill on the Fourth Amendment is a gift to lawbreakers

By “highest law of the land,” Paul is referring to the Constitution’s Fourth Amendment. The senator apparently did not read the Fourth Amendment before cutting and pasting it into his bill. It requires (in relevant part) that “the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.” Perhaps Senator Paul will edify us on how it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment. The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it.

Maybe Senator Paul would tell us that this is just the muck those crazy left-wing judges have made of the Constitution. But what Paul is advocating is a Constitution even more warped than the “organic” one progressive jurists have contrived. His proposal bears no resemblance to the Constitution of the Framers…

To give such third-party business records constitutional status, Senator Paul would have to get the judges to invent a newer, more expansive Fourth Amendment. So could we please drop the bunkum about how Senator Paul and his anti-government followers are “constitutional conservatives” crusading to “restore” the Fourth Amendment? If Senator Paul were actually trying to “restore” the Fourth Amendment, he’d be calling not for phone-usage records to be shielded from government but for phone conversations to be more easily monitored by government…

If, as Senator Paul proposes, law-enforcement agencies had to have probable cause before they could get telephone-usage records and pen registers, there would be far fewer search and eavesdropping warrants. Were that to happen, the most culpable, most insulated members of criminal organizations could no longer be penetrated by investigative techniques that police have been using, lawfully and with great public support, for decades — for as long as there have been phone records. The most efficient, most threatening criminal organizations would operate with impunity.