inasmuch as Congress cannot legislate that the courts use certain language, Heritage is probably right: it is not an enumerated power given to congress to regulate the procedures of the courts. This, of course, is dependent on the interpretation of A1S8 where it says that congress has the power to “make rules for the government and regulate the land and naval forces” but this appears to be more to do with defense than regulating court procedures.
But the idea that the government can gather information about a person from a company under some blanket warrant without a specific warrant related to that person, I, personally, believe is unconstitutional in itself.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
With the understanding that the founders could not conceive of phone metadata in this case, I would think that that would fall under the category of “papers”. If that is the case, then data cannot be gathered unless a warrant has been issued with an oath and affirmation of probable cause regarding every person for whom data is to be gathered. Sure, it may be that this amendment is going about this in a less than ideal way, but the program seems to be unconstitutional unless there is a signed consent form with phone companies permitting the sharing of data with the US government.
It may have been more proper to increase the requirements of the NSA for each person about whom data is gathered.
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