(Bloomberg) Senator Rand Paul is itching to challenge the constitutionality of the National Security Agency’s surveillance practices before the U.S. Supreme Court, and the American Civil Liberties Union has already filed such a suit. Justice Sonia Sotomayor might be glad to see them both there.

Specifically, Paul, a Kentucky Republican, has pledged to spearhead a class-action lawsuit against the NSA on behalf of the millions of Americans whose phone and Internet activity logs have been vacuumed up under sweeping Patriot Act orders for “business records.” Yet the NSA program’s defenders insist it’s entirely legal — that the Constitution doesn’t even protect these records, making any court challenge a nonstarter.

The terrifying thing is they may be right, which means we need to seriously rethink how the Fourth Amendment works in the 21st century.

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