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More than ten years ago, I announced plans to contest the constitutionality of the National Security Agency’s clandestine program that collected the cell phone data of all Americans. I remarked, “Our Founding Fathers stood against general warrants that empowered soldiers to intrude into the homes of American colonists. Similarly, I believe they would be appalled by a government that sifts through phone data of every citizen.”
In 2015, I held a Senate floor speech for over ten hours, stressing the perils of domestic surveillance. I cautioned, “Nations reach a point where fear and complacency allow unchecked power to rise, jeopardizing liberty and privacy.” Fast forward to 2023, I pushed for a vote to eradicate the domestic spying provision slipped into the National Defense Authorization Act. I underscored America’s history of surveillance overreach, including spying on figures like Martin Luther King and Vietnam War dissenters.
Despite my long-standing battle to safeguard our constitutional rights from the surveillance apparatus, I was still taken aback, if not entirely astonished, to hear that Special Counsel Jack Smith, appointed to probe Donald Trump, seemingly abused grand jury subpoenas to access phone records of nine Republican Congress members.
Ironically, some of these lawmakers, now subject to Jack Smith’s surveillance, had previously resisted my initiatives to restrict intelligence agencies’ authority under the Fourth Amendment’s protection against unreasonable searches.
The surveillance of these Congress members would have revealed details such as the timing, recipients, and duration of calls, along with the approximate location of the calls. This is precisely the type of information I had cautioned could be exploited.
These grand jury subpoenas likely violate the conclusions of the Supreme Court. This abuse of power should not go unchecked.
Sen. Rand Paul (R-KY) speaks during a the Senate committee hearing on September 17, 2025, in Washington, DC. (Kevin Dietsch/Getty Images)
In Carpenter v. United States, the Supreme Court ruled that people have a privacy interest in their geo-location information or their whereabouts and that government requests for a person’s geo-location should require evidence of probable cause or a warrant consistent with the Fourth Amendment.
Chief Justice Roberts wrote in the majority opinion: “The Government will be able to use subpoenas to acquire records in the overwhelming majority of investigations. We hold only that a warrant is required in the rare case where the suspect has a legitimate privacy interest in records held by a third party.”
The majority ruled that one’s geo-location from cell phone metadata was, indeed, a legitimate privacy interest.
Robert’s decision explains that, “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”
The Roberts opinion responded to a dissent from Justic Alito: “the [Alito] dissent should recognize that CSLI [cell site location information] is an entirely different species of business record – something that implicates basic Fourth Amendment concerns about arbitrary government power much more directly than corporate tax or payroll ledgers.”
Before the Carpenter decision, records held by third parties typically were not given full Fourth Amendment protections. The majority opinion in Carpenter, however, states that a current understanding of what is equivalent to one’s papers and effects has changed in the digital age such that: “If the third-party doctrine does not apply to the ‘modern-day equivalents of an individual’s own ‘papers’ or ‘effects,’’ then the clear implication is that the documents should receive full Fourth Amendment protection. We simply think that such protection should extend as well to a detailed log of a person’s movements over several years.”
Thank you to Kash Patel and the Trump administration for exposing this abuse of power. If the government is willing to ignore the Fourth Amendment rights of members of Congress, imagine what they might do to an ordinary citizen. Good riddance to the fired FBI agents who violated the Fourth Amendment rights of nine Republican members of Congress.
As more details emerge, it will be interesting to see if any of the phone companies resisted or filed motions to quash any of these illegal subpoenas. If the phone companies did not make any attempt to fight these spurious subpoenas, it will be important to find out of liability attaches to them for not protecting their customer’s Fourth Amendment rights.
The protection of constitutional rights is not, however, the exclusive domain of the courts. Over the years, I offered several proposals to safeguard constitutional rights, including ensuring that Americans are not subject to spying ordered by the secret Foreign Intelligence Surveillance Court, and ending the government’s ability to circumvent the Fourth Amendment by buying Americans’ personal information from data brokers.
Hopefully, meaningful reform is possible now that members of Congress see that the eyes of the surveillance apparatus they unquestionably supported could be trained on them. They can’t say I didn’t warn them.
Rand Paul is a United States Senator from Kentucky.
