By Ian Prior
Published December 07, 2019
When the final history of the Democrats’ impeachment kangaroo court is written, the most important result for American society will not be the removal of President Trump from office after a Senate trial. That has zero chance of happening.
No, the most momentous thing to come out of this whole wasteful affair will be House Intelligence Committee Chairman Adam Schiff, D-Calif., successfully subpoenaing phone call records of President Trump’s attorney Rudy Giuliani and businessman Lev Parnas, who has been charged with campaign finance violations.
As a result of the subpoenas, phone call records of journalists and members of Congress were also swept up.
I’m no fan of Schiff or the way he has run the impeachment sham, but what he did was perfectly legal. And that is precisely why every American – regardless of political party – should be frightened into action to demand such action be made illegal.
We should demand that Congress end the outdated “third-party” doctrine that allowed Schiff to get Giuliani’s phone records just as easily as he could get yours or mine.
What is the third-party doctrine?
If the local police, the FBI, or Congress want records that I keep in a drawer at home, I would have protections under the Fourth Amendment to the Constitution, which protects us all against unreasonable searches and seizures. So the authorities would need a search warrant to enter my home and get those documents.
To get a search warrant, the authorities would need to show that there is probable cause that I committed a crime.
Yet my Fourth Amendment protections disappear when it comes to who I have called, bank transactions I have made, documents I have stored on the cloud, or any other information that I have handed over to a third party like a telephone company, an Internet service provider, a bank, or Google.
If law enforcement officials or Congress want my personal records that are held by a third party they can simply issue a subpoena to the third party and I would have no Fourth Amendment protections.
The reason – according to two U.S. Supreme Court cases (United States v. Miller in 1976 and Smith v. Maryland in 1979) – is that we lose our expectation of privacy and any Fourth Amendment protections when we voluntarily allow third parties to maintain our records.
The problem, as legal scholars and Supreme Court justices recognize, is that 21st century technology effectively requires us to turn over our information to third parties if we are to productively engage in society.
Almost everything we do is kept track of by a third party: web browsing, online purchasing history, in-store purchasing history, phone calls, texts, emails, cloud storage, television watching and more. There is no practical way to refrain from all these activities.
If all that information can be accessed in some form by the government without probable cause, we are on the fast track to an Orwellian society.
This is exactly the concern raised by liberal Supreme Court Justice Sonia Sotomayor in the 2012 case Jones v. United States, where she said the third-party doctrine “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.”
Unfortunately, most of the media are so caught up in the drive to destroy President Trump that they miss the forest for the trees.
Consider the CNN headline blaring that the phone records “show how Trump allies coordinated ‘false narratives’” or the Washington Post headline claiming that “Phone logs in impeachment report renew concern about security of Trump communications.”
What the media should be focusing on is not how these records will impact a doomed road to nowhere with this impeachment crusade. Rather, the media should look at how Schiff has exposed a major flaw in our legal system that could impact all of us, including journalists who find themselves on the wrong side of a congressional investigation.
It was very encouraging to see the op-ed by Sen. Rand Paul published by Fox News touching on the problem with the third-party doctrine. All Americans should demand that Congress follow his lead and start working to fix a problem that threatens all of us and is far more important than this impeachment sham.