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In an important decision that was not widely noticed, the Supreme Court of the United States just declined to take up a federal constitutional challenge to the government’s bulk collection of telephone metadata collected under the PATRIOT Act. In doing so, the court effectively ruled that the federal government had the authority to collect and retain every American’s records without regard to whether those records contained sensitive or classified information. The Supreme Court opinion, written by Justice John Paul Stevens, stated: “Our constitutional system rests on a fundamental principle: government cannot, without a strong showing of probable cause, enter your home and seize your papers and money without a warrant.”
The Court’s decision effectively leaves intact the bulk collection program and its underlying legislative justification, despite the fact Congress made it clear it meant no such thing in law. The Court’s analysis is consistent with the recent ruling by a federal appellate court in Texas that all Americans have a reasonable expectation of privacy in their telephone metadata, including the numbers dialed and length of the calls. The case, United States v. Jones, involved warrants issued under the PATRIOT Act for the identification and collection of phone metadata. According to the federal government’s own expert evidence, the case demonstrates:
The data in the telephone records are of foreign intelligence value and warrantless in nature and do not, in and of themselves, constitute a search of the telephone records. The telephone records are not records protected by the Fourth Amendment.
The opinion was highly critical of the government in general for its reliance on the “business records” category in the PATRIOT Act, which can include “any record, including metadata, that records the time, date, place, and information concerning any calls, including any call records.” However, the Court also found that Congress “could have” created that category of records specifically to meet a similar purpose. The case in Texas found that “business records” records are defined as “any record, including metadata.” The case is being appealed to the Supreme Court.
This is one of those cases that the government simply has not managed to figure out a way to justify. I don’t know what it will argue
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