I’ve been watching the media run around with their hair on fire screaming that the Obama Administration has subverted the Fourth Amendment: First with the subpoenas to FoxNews and the NYTimes, and then with the revelation the NSA is sweeping up all the numbers dialed on Verizon. Hardly anybody writing about this has any sense of history or knowledge of the law. I’ve been saying this all along: This is perfectly legal under the Fourth Amendment. It is distasteful as hell, but it violates no law. (WaPo: Obama defends NSA’s sweeping surveillance: “President Obama says ‘nobody is listening to your telephone calls’ and that Congress has authorized the programs.”)
The Bush Administration had plans for all this to begin with, but then quickly came the opportunity for the USA PATRIOT Act. To paraphrase Justice Scalia during the Voting Rights Act argument, It’s against a Congressman’s interest because of a name like that? “Even the name of it is wonderful: The [Patriot] Act. Who is going to vote against that in the future?”.
The Patriot Act became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I’m not the slightest bit surprised. Nobody keeping up is surprised. (1984 was nearly 30 years ago.)
All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.
Fast forward 34 years to today, and it has been widely known that the NSA has the ability to gather all the information off satellites without a warrant. (1998’s movie “Enemy of the State” was not off the mark.)
So, the subpoenas for phone records of journalists: perfectly legal. Congress has not seen fit to ever adopt a journalist shield law to help implement the First Amendment. They don’t have any standing to complain.
If you don’t like the privacy implications, Sen. Paul has proposed legislation to change it. First is the “Fourth Amendment Preservation and Protection Act of 2013,” S. 1037 that would legislatively overrule Smith and Miller. Second is “A bill to stop the National Security Agency from spying on citizens of the United States,” S. 1121.
Then there is the question of legislation to revamp the hopelessly outmoded Stored Communications Act. The “Email Privacy Act,” H.R. 1852 is a start but never good enough.
What is Congress doing? Essentially nothing. Proposing a law with great fanfare is meaningless if it goes nowhere. I wrote my Senators about email privacy, so I figure they don’t care since they never wrote back. So, I haven’t bothered to write to them about Sen. Paul’s bills. Congress is too mired in gamesmanship to do their damned jobs of actually legislating in the public interest.
“We the people” are the boiling frog, and the water has started to boil. We started giving up our liberties long before Bush and Ashcroft sold the Patriot Act, and that was just raw exploitation of fear over any sense of history. “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” Ben Franklin, 1759 (or 1775 depending on the source).
Today’s computers and software make unlimited information gathering possible, and the information is there, waiting to be mined. Under law, all this is, quite regretfully, legal. There is infinite personal information about each of us out there, just waiting to be gathered up. Smith and Miller have outlived their usefulness, and they need to be legislatively overruled because this is just the first real public disclosure of what’s been going on for at least a decade. We don’t have time for SCOTUS to get around to it. And what if it doesn’t?
Now, what are we going to do about it? Complain, but sit on or wring our hands and do nothing? (The “collective national shrug”?) Write to your Senators so Sen. Paul’s bill will get to committee for a discussion. The committee hearings, I’m sure, will be entertaining. And, to Sens. Pryor and Boozman: Do something. What are you there for? Stop just taking up space.
TPM: Report: NSA Accidentally Collected Data From Innocent Americans by Igor Bobic:
The National Security Agency inadvertently collected data from innocent Americans in 2009, including private email messages and phone conversations, prompting a review by Attorney General Eric Holder in the way the agency manages its domestic surveillance program, NBC News reported Friday: ...
Mother Jones: Justice Department Fights Release of Secret Court Opinion Finding Unconstitutional Surveillance by David Korn:
Government lawyers are trying to keep buried a classified court finding that a domestic spying program went too far.
WaPo: Wonkbook: These programs might well have been legal. That’s almost worse by Ezra Klein and Evan Soltas:
NYT: Report Says T.S.A. Screening Is Not Objective by Michael S. Schmidt:
The Transportation Security Administration has little evidence that an airport passenger screening program, which some employees believe is a magnet for racial profiling and has cost taxpayers nearly one billion dollars, screens passengers objectively, according to a report by the inspector general for the Homeland Security Department.
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Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
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City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)