The Libertarian Republic: Congress Set To Limit Judge-Less Subpoenas At Heart Of Privacy Debate

The Libertarian Republic: Congress Set To Limit Judge-Less Subpoenas At Heart Of Privacy Debate by Mark Tapscott

A measure protecting Internet Service Providers against judge-less subpoenas issued by federal bureaucrats has 305 congressional co-sponsors and seems headed toward passage.

The Email Privacy Act has 192 House Republican co-sponsors and 113 Democrat co-sponsors, and seems set to pass this year or in 2016. A companion measure is making comparable progress in the Senate. Supporters of the measure protects a massive constitutional abuse by federal bureaucrats that everyday Americans rarely hear about.

The bill updates the Electronic Communications Privacy Act of 1986 to require agencies seeking information about an individual’s Internet activities from an ISP to secure prior approval for a subpoena from a federal judge, as the Fourth Amendment requires.

Except that: (1) the Fourth Amendment does not yet require that because it’s a third party record, so one can’t say the Fourth Amendment requires that since the case law says it does not, and we’re a long way from overruling the third party doctrine, but this is a tentative small step in that direction, if Congress ever does anything. I’m not holding my breath. (2) Trial and grand jury subpoenas are judge-less, too, so what makes the Fourth Amendment apply there? Nothing. (3) Having 305 sponsors doesn’t mean a thing in Congress because it’s so dysfunctional and can only agree on when it goes home and otherwise seems to do nothing, which is all the time. Plenty of bills have plenty of sponsors and languish.