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Rand Paul, Fourth Amendment Protections, and a Lonely Voice

by Kaylan Kaatz, published
(Credit: David J. Shestokas)

Persistence for Fourth Amendment Protections Seems Paltry

For years, Rand Paul has warned Americans about government surveillance. Last December, he sought unsuccessfully to extend Fourth Amendment protections, requiring a search warrant for emails, bank statements, and other third party records in his proposed amendment to the Foreign Intelligence Surveillance Act (FISA) Reauthorization Act of 2012.  In the wake of the NSA scandal, Paul renews his efforts.

Following the NSA whistle-blowing scandal, Paul introduced a bill advocating fourth amendment protection extensions.  The Fourth Amendment protects Americans from unreasonable searches and seizures, requiring consent or a search warrant (which is issued by a judge based on probable cause).

Paul's proposed bill would make the acquisition of information held by a third party system of records unconstitutional and inadmissible in criminal court unless a search warrant is obtained or the individual consented.

Despite Paul's adamant attempts for Fourth Amendment protection extensions, his bill will likely not garner much Congressional support.  Following legislation such as the Patriot Act, Protect America Act, and FISA, it appears that many Congress members back surveillance to ensure domestic security.

Individual provisions of these various bills have been challenged with little success.  In Mayfield v. United States, the court did not comment on the constitutionality of several FISA provisions which allow the government to conduct physical searches, electronic surveillance, and wiretaps of residences and offices without proof of probable cause or an assertion that the activities' purpose was to gather foreign intelligence information.

Instead, the court determined the plaintiff did not have standing to pursue the lawsuit following his settlement with the government.  In United States v. Jones, the court stated that GPS tracking constituted a search under the Fourth Amendment, but declined to rule on the constitutionality of such a search without a warrant.

Between the courts and Congressmen, fourth amendment protections will likely remain the same despite Rand Paul's bill to extend them.  Public outcry over the NSA scandal is high, but it is unlikely effectuate change alone.

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