It was all the talk on the web a while back, and I still hear it talked about today.  People are outraged that the government is collecting phone call meta data.  They claim it’s a violation of their Fourth Amendment rights against unreasonable search and seizure, but really, that all depends on who the meta data belongs to.

The Fourth Amendment protects your privacy, specifically your right to be secure in your person, houses, papers, and effects.  I have not heard anyone question that the contents of your emails, texts. and phone conversations are yours, but what about phone meta data?  Who owns that?

Do you own the billing information from your electric company?  Do you own the customer information at your car dealership or at Amazon?  If not, then why would you own the billing information at the phone company?  You contract with your phone carrier for access to their network.  In order to handle billing and contract enforcement, the phone company has to keep track of when you call and for how long.  They also need to track who you call, or who calls you, to prove the call was valid.  Otherwise you’d question every call and the phone company would have no proof that the call was real.

So if the meta data is simply the billing information generated by the phone company, for their records, then isn’t that data theirs not your?  Yes, it’s about you, but you didn’t create the data nor did you store the data, so how is it your data?  There is nothing in the Fourth Amendment protecting data about you, only things you own.

The problem arises when the government wants access to this information about you.  Since the information is owned and stored by the phone company, the government requests it from them via a subpoena.  (Unlike a warrant, a subpoena can be issued by any government agency and does not require proof of probably cause.)  The phone company has every right to require the government to get a warrant to access their data.  Since what the government is looking for isn’t about the phone company, there’s no real harm to them if they release the data and I’m sure a lot of legal difficulties from the government if they refuse.  Sure, you have a contract with the phone company, and it may even say they are required to keep your information safe, though I doubt your contract states that they will protect it from the government.  The truth is the cost of defending a suit from you is nothing compared to fighting the government.

So the problem is not that the phone companies are sharing our data, but that they are sharing data about us, and there is no constitutional protection against that.  Remember, when the Constitution was written, the only methods of communication were face to face or by writing a document, making the Fourth Amendment’s protections adequate for the day.  The problem is, technology has changed in the last 240 years, yet no one has bothered to amend the Constitution to keep up with the times.

We’ve talked a lot about the fallacy of the Constitution being a “living document”, especially when it is used to mean whatever the reader wants it to mean.  But the Constitution was designed to be amended for just this reason.  When the changes that naturally occur over time mean the principles of the Constitution are no longer in effect, then it’s time to amend it and restore the principles of protecting our rights.  Therefore, I propose the following Constitutional Amendment:

The right of the people to be secure in their persons, houses, documents, papers, and effects, including data and records created by them or about them, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

By adding the underlined language, Fourth Amendment protections will be extended to the intangible information that is so much a part of our 21st century lives.  This language also protects data we store in the cloud and information created about us by third parties.  This would not only protect your phone meta data, but also your medical and bank records, both of which are under attack.  You can read more about this in my review of the Carpenter v Casey decision from the supreme Court.

Do I expect those in Washington to propose such a simple and obvious fix to an issue so pervasive in our lives?  No, mostly because I don’t expect Washington to restrict their powers voluntarily.  Nor do I expect any of the Article V Convention groups to propose such an amendment should a convention of the states actually happen.  At least not unless and until We the People start demanding that those we hire to represent us to protect our rights and the Constitution, as they have sworn to do, actually do so or be fired.

Author: Paul Engel

Paul Engel founded The Constitution Study in 2014 with the goal of helping everyday Americans read and understand their Constitution. Author, blogger, podcaster and speaker, Paul writes and podcasts at http://constitutionstudy.com. You can also find his books at http://amazon.com/author/paulengel

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