Jack Smith’s ‘Arctic Frost’ spies snooped on Congress — time to rein in the spooks

Advocates for government surveillance often argue that if you have nothing to hide, you have nothing to fear.  

I’m sure Jack Smith, the special counsel President Joe Biden appointed to do whatever it takes to bring down Donald Trump, took solace in that bromide as he rifled through the personal data of 10 members of Congress, illegally attempting lawfare to implicate these elected officials in some contrived insurrection.  

Arctic Frost is the chilly name the FBI gave its unconstitutional fishing expedition.  

How could such an abuse of power occur in a nation famous for its protections against unreasonable searches and seizures, enshrined in the Fourth Amendment?

Well, the story of government’s abuse of search-and-seizure power is long — and in the modern era, it largely begins with litigation concerning the privacy of one’s phone.

In 1928, the Supreme Court in Olmstead v. United States ruled that federal agents who installed government wiretaps on an alleged criminal’s phone did not violate the Fourth Amendment, because the wiretap did not involve a trespass on his property.

Justice Louis Brandeis dissented, famously writing that our Founders “conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.

“To protect that right,” Brandeis continued, “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.”

Olmstead governed the constitutional treatment of phone calls until 1968, when the Supreme Court changed the standard.

In Katz v. United States, the justices ruled that the Fourth Amendment includes an expectation of privacy in the content of one’s calls, and that a physical intrusion was unnecessary to claim its protections.

Yet in the 1979 case Smith v. Maryland, the court ruled that Americans can claim no legitimate expectation of privacy in the phone numbers they dial, because that information is shared with the phone company.

As Justice Thurgood Marshall presciently warned in his dissent, “Unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance.”

When the cell phone era arrived, government spooks discovered a treasure trove of information could be gleaned from the metadata associated with phone calls.  

Simply analyzing who you called, how long you spoke and your geolocation could typically reveal very personal medical problems, psychiatric disease, and even one’s religion, studies found.

In a landmark 2018 ruling, Carpenter v. United States, the Supreme Court finally revisited the issue — and Chief Justice John Roberts, writing for the majority, concluded that individuals do have a legitimate privacy interest in their geolocation.

But Jack Smith, the left’s ballyhooed hero, apparently never got around to reading Carpenter: He used unconstitutional subpoenas to obtain the geolocations of 10 Republican senators and House members in the days before and after Jan. 6, 2021.

We can, and we should, be outraged by this abuse of power.

But rather than rage, I’d prefer to pass legislation to prevent the government from such unconstitutional spying.  

Jack Smith’s actions should serve as a stark reminder that Section 702 of the Foreign Intelligence Surveillance Act, the much abused government authority to conduct mass warrantless surveillance, will sunset this upcoming April.

You can be assured that apologists for the surveillance state will use that opportunity to attempt to grab even greater authority to spy on Americans.

My Fourth Amendment Restoration and Protection Act is the only way to prevent a future Jack Smith from abusing surveillance power.

My bill would require the government to obtain an order from Article III courts, not from the secret FISA court, to surveil citizens, and would prohibit agents from conducting queries — that is, electronic searches of communications collected by government spies — on Americans.

Congress can reinvigorate the Fourth Amendment by ensuring that no American will be subject to warrantless spying and the orders of an unaccountable secret court.

Many of President Trump’s allies have opposed my bill because they live in a world of fear.

They may have truly believed that they had nothing to hide, and therefore could not be harmed.

Now that some of these same people have been ensnared in Jack Smith’s illegal surveillance, maybe, just maybe, they will trade in the “nothing to fear” doctrine — and instead adopt the time-tested, deservedly honored tradition that all Americans are presumed to be innocent until proven guilty. 

Rand Paul represents Kentucky in the US Senate.