WHEN IS A SEARCH?
When is a search a search? For constitutional purposes, it depends upon the situation, as each is handled on a case-by-case basis. When it comes to the NSA program that obtained bulk telephone metadata, I think it has to involve a name or a photograph or at least a physical address. Metadata, or an electronic box containing 300t bytes of anonymous information that may include telephone numbers, numbers called and the times those calls were made, just doesn't suffice. For me, this is the crucial issue that has been adjudicated in two recent federal district court cases.
THIS MAY HELP TO CONVEY THE POINT I'M TRYING TO CONVEY
For example, the FBI issues a "Ten Most Wanted" poster with a picture, a name, a physical description, and a last known address on it. That poster would be utterly useless if all it provided by way of identifying information was: "Male or Female, Lives in America, Verizon customer." How do you search for that?
BUT EVEN IF THE DATA IS USELESS WITHOUT FURTHER INTENTIONAL AND ILLEGAL SEARCH, WHAT KEEPS THE GOVERNMENT FROM POURING THE DATA ONTO A BED AND HAVING SEX WITH IT?
What keeps the Government from invading that electronic box of telephone metadata for malevolent purposes? That would be the rule of law. The Government also relies on the rule of law when it hands out weapons to approximately two million people, trusting that they won't use them against civilians, the opposition party or on the Government itself. If one were to be paranoid about the Government, I would think the fact that it arms about two million Government employees, including the Army, Navy, Marines, Air Force, Coast Guard, border patrol, TSA, Secret Service, Air Marshals, US Marshals, etc.-- with only the rule of law keeping them in check--would be paranoia better spent. (NOTE: I'm not paranoid about the Army or the TSA; just making a point.)
As Democrats, I think we don't need to obey the rule of law at all times, but we must have a damn good reason to ignore it or to give it short shrift. We need Government. We want Government. And Government is only a fiction created by the rule of law.
When Justice Antonin Scalia claims that ObamaCare is unconstitutional because we might next be forced to buy broccoli, he is ignoring the rule of law. By ignoring the rule of law, Scalia's fevered imagination has conjured up a scenario in which a majority of both houses of Congress have enacted a bill forcing all Americans to buy broccoli, the President has signed into law this new broccoli mandate, and the Supreme Courts of every state and the United States have found that mandate not only constitutional but a compelling governmental interest.
To summarize, the data collected is just not that helpful in identifying people. It is much less helpful, for example, than telephone books or census data, both of which the Government has in abundance. On top of that, the Government is proscribed from looking further at the data by the rule of law. That's the same rule of law that keeps our armed forces from attacking our people or the opposition party. It is the same rule of law upon which our system of government is founded.
In the end, I guess, we can all agree that the Government could do a lot of scary things. (They have nuclear bombs, biological and chemical weapons.) What has kept Democrats within the reality based segment of society is our belief in society, our belief in Government and our belief in the rule of law.