When he issued a preliminary injunction against the NSA's phone record database on Monday, U.S. District Judge Richard Leon declared, "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment." Surely it does, says Senior Editor Jacob Sullum, but it is hard to see how the Supreme Court can reach that conclusion without reconsidering the "third party doctrine," which holds that information loses Fourth Amendment protection when you disclose it to someone else.
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