Rand Paul, National Review, and a View From the Cheap Seats

I first subscribed to National Review when I was in high school, which would be somewhere northwards of 42 years ago. I  have been a faithful subscriber since that time, and — disagreements and all — it remains my favorite magazine. They are still genuinely conservative, although it should be said at the outset that they are not conserving quite as much as they used to.

Rand Paul, the senator from Kentucky, is a skosh more libertarian than I would like, but I like what he has been doing very much. About time somebody did, and all that. There are places where the libertarian streak will lead you astray (e.g. marriage), but there are other places where it supplies a much needed corrective to our putative lords and masters (e.g. metadata).

In their latest issue, in an unsigned editorial, NR took Rand Paul to task for his recent lawsuit claiming that the NSA’s collection of metadata was a violation of the Fourth Amendment. At the recent CPAC convention, Rand Paul said that what you do on your cell phone is “none of their damn business,” which was red meat for the assembled conservatives. But NR dismissed this line as showboating, a “publicity stunt” — frivolous and unnecessary.

Their argument was that the Fourth Amendment protects four categories of intimate personal property — “one’s person, home, papers, and effects.” The metadata has to be considered the property of the service providers, and not part of the citizen’s personal effects. Ergo, showboating.

Not so fast. The service providers are private entities. The Fourth Amendment applies to them also. Why should they be pressured into turning over metadata without a warrant? If a telecom company started up on the premise that they would keep all metadata confidential, meaning that nothing would be turned over without a warrant, would that be allowed?

And do we really want to say that it is okay for someone at the Post Office to keep a log book of all the letters I write? One column for the address, another for the handwriting, another for the size of the package, and so on, even if everybody promises not to open any of the letters? Unless they suspect something? These are my “effects,” which I entrusted to a third party for transport. I think the Fourth Amendment clearly does apply, but let’s suppose it doesn’t. That would only mean that Madison and company failed to anticipate the invention of the cell phone, and so we need to apply the principles they understood to this new situation, and we need to do it instanter. The Fourth Amendment protects my “papers” so I need to make sure that I don’t record my private information in a “paperless” office? Are they serious?

Now for a qualification. I have argued in the past that there is a distinction to be made between the desire for privacy, which is noble, and the desire for anonymity, which is not. And I grant that a hefty part of the libertarian moment is agitating for the latter, not the former. There are hazards here, in all directions. Just as I don’t have a problem with citizens operating in the new electronic world, so also I have no problem with legitimate police work being done there. The laws concerning warrants have to be updated, and not just the laws concerning the privacy of citizens. The same goes for those who are doing legitimate intelligence work. This is a problem that responsible people do have to work out.

Unfortunately, Washington D.C. is not run by responsible people. And, as Shakespeare would have put it, there’s the rub. We are told that the federal government is dedicated to keeping us safe. And we are saying in reply that we don’t believe you. You tell us that you are trustworthy. We reply that you are not trustworthy. If there were a scandal concerning the metadata, a genuine scandal, what on earth makes you think that it would be handled in any way different from how the IRS scandal has been handled? Or Fast and Furious? Or Benghazi? If you reply that our national security is at stake, I will say that the corruptions of Washington are a far greater threat to our national security than the jihadi ragheads are. If you really want to do something for national security, clean up the sinkhole of federal corruption first. Then let’s talk about the metadata you are yearning to get a hold of.

Our congressmen spend money like they were a regiment of chimpanzees that got into a warehouse full of trade gin. Millions of unborn Americans have been offed because of the federal government’s perverse definitions of privacy, speaking of privacy. You now want to tell us that you have a good grip on what privacy means when it comes to cell phones? No, you don’t — slaughtering thugs. You can’t recognize the image of God in an unborn child. Why would you suddenly respect the digital images of somebody’s kids on their cell phone? You don’t even know what a person is. How could you then know what personal privacy is?

In short, here it is. We don’t believe you any more. If I were a citizen of Russia, and just found out that Putin was collecting all the cell phone metadata over there, would you be assuring me that there was nothing whatever to worry about? That a character like Putin couldn’t put such information to a despotic use? Exactly. Your knickers would be in a twist if Putin were doing it. And this is not in praise of Putin. I believe him to be a competent thug, unlike Obama, who is an incompetent thug. And there are certain things I don’t want either one of them to have.