{"id":8851,"date":"2013-06-10T10:36:29","date_gmt":"2013-06-08T09:49:49","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-06-08T09:49:49","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8851","title":{"rendered":"Under law, all this is, quite regretfully, legal."},"content":{"rendered":"

I\u2019ve 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\u2019ve 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\u2019s sweeping surveillance<\/a>: \u201cPresident Obama says \u2018nobody is listening to your telephone calls\u2019 and that Congress has authorized the programs.\u201d)<\/p>\n

The Bush Administration had plans<\/a> for all this to begin with<\/a>, but then quickly came the opportunity for the USA PATRIOT Act. To paraphrase Justice Scalia during the Voting Rights Act argument, It\u2019s against a Congressman\u2019s interest because of a name like that? \u201cEven the name of it is wonderful: The [Patriot] Act. Who is going to vote against that in the future?\u201d<\/a>. <\/p>\n

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\u2019m not the slightest bit surprised. Nobody keeping up is surprised. (1984 was nearly 30 years ago.)<\/p>\n

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<\/a> 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<\/a> 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\u2019t recorded. That was, after all, all technology allowed at the time. Think of the NSA as one huge pen register.<\/p>\n

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\u2019s movie \u201cEnemy of the State\u201d<\/a> was not off the mark.) <\/p>\n

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\u2019t have any standing to complain.<\/p>\n

If you don\u2019t like the privacy implications, Sen. Paul has proposed legislation to change it. First is the \u201cFourth Amendment Preservation and Protection Act of 2013,\u201d S. 1037<\/a> that would legislatively overrule Smith and Miller. Second is \u201cA bill to stop the National Security Agency from spying on citizens of the United States,\u201d S. 1121<\/a>. <\/p>\n

Then there is the question of legislation to revamp the hopelessly outmoded Stored Communications Act. The \u201cEmail Privacy Act,\u201d H.R. 1852<\/a> is a start but never good enough.<\/p>\n

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\u2019t care since they never wrote back. So, I haven\u2019t bothered to write to them about Sen. Paul\u2019s bills. Congress is too mired in gamesmanship to do their damned jobs of actually legislating in the public interest.<\/p>\n

\u201cWe the people\u201d 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. \u201cThey who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.\u201d Ben Franklin, 1759 (or 1775 depending on the source).<\/p>\n

Today\u2019s 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\u2019s been going on for at least a decade. We don\u2019t have time for SCOTUS to get around to it. And what if it doesn\u2019t?<\/p>\n

Now, what are we going to do about it? Complain, but sit on or wring our hands and do nothing? (The \u201ccollective national shrug\u201d<\/a>?) Write to your Senators so Sen. Paul\u2019s bill will get to committee for a discussion. The committee hearings, I\u2019m sure, will be entertaining. And, to Sens. Pryor and Boozman: Do something. What are you there for? Stop just taking up space.<\/p>\n","protected":false},"excerpt":{"rendered":"

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