Privacy Lost: The Death Of The 4th Amendment
November 23, 2012 by Bob Livingston
Technically speaking, the 4th Amendment died on Oct. 26, 2001. That’s when the misnamed USA Patriot Act was signed into law by George W. Bush (since renewed, including by Barack Obama last year). Since then, it’s been on life support: essentially brain dead, but still there in words though not application.
For those who failed to learn the Constitution during their incarceration in the U.S. non-education system, that one applies to privacy. It reads: “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 searched.”
The unPatriot Act gives the criminal law enforcement class carte blanche to violate the communications privacy of Americans — whether they are involved in crime or are innocent. The list of Constitutional violations in the act is too long to list in toto. I have outlined some of them over the years here, here, here and here. Among its most egregious violations are allowing law enforcement to access voice mail and to search homes, businesses telephones, email and financial records with a search warrant but without a court order and without the owner’s knowledge or consent. It also lowered the standard by which search warrants could be obtained — making them almost automatic — and expanded the court jurisdiction, making it possible to go judge shopping for warrants.
Only Russ Feingold (D-Wis.) opposed the original bill in the Senate. Sixty-six House members opposed the original bill: 62 Democrats, three Republicans and one independent. In subsequent renewals it has received almost no opposition.
Last week, Senator Patrick Leahy (D-Vt.) proposed a bill that would have removed the 4th Amendment’s life support and sent it off to the hereafter, like most of the rest of the Constitution. It would have allowed more than 22 government entities to access Americans’ email, Google Docs files, Facebook wall posts and Twitter messages without a search warrant. It would also have given the FBI and Department of Homeland Security more authority to gain full access to Internet accounts without informing the owner or a judge.
Among the bill’s lowlights:
- It grants warrantless access to Americans’ electronic correspondence to more than 22 Federal agencies — including the Securities and Exchange Commission, the Federal Communications Commission, the Federal Reserve (which is not even a Federal agency), the Federal Trade Commission, the National Labor Relations Board and the Mine Enforcement Safety and Health Review Commission. Only a subpoena is required, not a search warrant signed by a judge based on probable cause.
- It permits State and local law enforcement to access — without a warrant — Americans’ correspondence stored on systems not offered “to the public,” including university networks.
- It authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim “emergency” situations exist.
- It says providers “shall notify” law enforcement in advance of any plans to tell their customers that they’ve been the target of a warrant, order or subpoena.
- It delays notification of customers whose accounts have been accessed from three days to “10 business days.” This notification can be postponed by up to 360 days.
After CNET News published an article Tuesday exposing the bill, the outcry became so great that Leahy announced that night on Twitter that he was dropping support of warrantless access.
That such a bill would even be considered is remarkable until one remembers that it was this time last year that the National Defense Authorization Act (NDAA) came into being. Signed into law on New Year’s Eve, all the NDAA does is “legalize” the indefinite detention of Americans, allowing law enforcement to snatch them off the streets and hold them in secret locations for any reason or no reason and without trial for eternity. Obviously, the political class cares not a whit about the Constitution.
Leahy’s dropping of the warrantless access provision is a win for privacy. But don’t rest easy just yet; entities within the U.S. government law enforcement apparatus, the U.S. Congress and the United Nations are working daily to gain control of the Internet.