Paul’s Lawsuit Is Groundbreaking, But Faces Challenges
Senator Rand Paul has announced what could be the largest class action lawsuit in history, according to Fox judicial analyst Andrew Napolitano. Filed in conjunction with FreedomWorks, the suit seeks to hold President Obama and the NSA to account for their sweeping surveillance of hundreds of millions of Americans.
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Paul acknowledges that the suit is unusually large, but notes that “we didn’t define the class.” Rather, “this is defined by the arrogance of government that has decided that the Fourth Amendment really allows a warrant to be written for everybody’s phone records.”
Commenting on the announcement on Fox News, Napolitano said “I think Senator Paul has an excellent case.” He pointed out that the Fourth Amendment was written specifically to proscribe generalized warrants, or warrants that do not specify an individual to be searched. Warrants like these were used by British soldiers prior to the American Revolution.
A circuit court ruling, U.S. v. Warshak, has found that emails are protected by the Fourth Amendment even when they are entrusted to a third party. The court warned that “the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish.” Last year, the IRS said that it would defer to this holding and seek warrants for any emails it wanted to read. It’d require only a short step for this sort of legal thinking to apply to cell phone data.
The lawsuit’s challenge has put the Obama administration’s supporters on the defensive. A writer at the Washington Post has alleged that Rand Paul “stole” the text of the lawsuit. Reality, of course, is vastly less exciting.
Rand Paul initially worked on the lawsuit with former Reagan lawyer Bruce Fein. Fein was later replaced as lead counsel by Ken Cuccinelli, the former attorney general of Virginia. Yet Paul and Cuccinelli continued to use the draft that Fein hard worked on. Thus, Paul apparently “stole” a lawsuit that he has been involved with from its inception.
Rand Paul’s lawsuit could discredit the NSA’s brazenly unconstitutional surveillance program. Defenders of the Fourth Amendment should see Paul’s announcement as an emboldening step.
(UPDATE: TLR sources have reported that Bruce Fein’s ex-wife apparently erroneously reported that there was a problem with being replaced as lead counsel. However Bruce Fein himself did not complain or allege that he had been removed or that Paul had “plagiarized” the lawsuit as some sources have been reporting.)
