Here we go again. The Obama administration has asked its allies in Congress to introduce legislation that would permit the feds to continue their march through the Fourth Amendment when it comes to obtaining private information about all of us.
The Fourth Amendment, which guarantees the right to be left alone, was written largely in response to legislation Parliament enacted in the Colonial era that permitted British soldiers to write their own search warrants and then use those warrants as a legal basis to enter private homes. The ostensible purpose of doing that was to search the Colonists’ papers for stamps, which the Stamp Act required the Colonists to affix to all documents in their possession. The laws that permitted the soldier-written search warrants and the Stamp Act were the British government’s fatal political mistakes, which arguably caused a major shift in Colonial opinion toward secession 10 years before the bloody part of the Revolution began.
After the Founding Fathers won the Revolution, they wrote the Constitution in large measure to assure that the federal government would not and could not do to Americans what the king had done to the Colonists. Hence the Fourth Amendment’s requirement that only judges issue search warrants and only after the governmental agency seeking the warrants presents evidence under oath of probable cause of crime. That was weakened after the Sept. 11 terrorist attacks with the enactment of the USA Patriot Act.
The Patriot Act — written in defiance of the Constitution and in ignorance of U.S. history — permits federal agents to write their own search warrants, just as the king and Parliament permitted British soldiers to do. Those agent-written search warrants are intended to be limited to the search for evidence of terrorist plots and theoretically are limited to the seizure of physical records in the custody of third parties, such as lawyers, doctors, hospitals, billing clerks, telephone and Internet carriers, and even the Postal Service. (Did you know that federal agents can see your mail and your legal and medical records without permission from a judge?) This abominable piece of legislation sacrificed freedom for safety and enhanced neither.
Now the feds want even more personal liberty sacrificed — this time to make it easier for them to collect digital information.
The Obama administration wants legislation that would punish Internet-service providers that fail to cooperate with FBI requests and court orders. The FBI has revealed that its agents often “lack the time” to obtain search warrants, so they have gotten into the bad habit of asking Internet-service providers to let them in without warrants.
This was done notoriously in the Bush era, during which the feds promised immunity to telephone service providers that enabled the feds to spy on their customers. That spying was criminal and gave rise to civil causes of action for damages, as well, until Congress changed the law retroactively and granted the promised immunity after the Bush administration spying was exposed.
Some telephone service providers declined the government requests then, and some Internet providers decline these requests today. Hence, the proposed legislation would punish providers that protect the privacy of their customers by telling the FBI to go home.
The second category of punishment sought by the administration is for when the FBI needs information to obtain a warrant. A search warrant typically authorizes the government to enter private premises and look for the specific items designated in the warrant, but it does not require the custodian of those specific items to find them for the government. The proposed legislation would change all that.
The government has revealed subtly that when it comes to digital data, it often does not know what it is looking for, and its agents lack the skills to hook into the Internet providers’ systems. This raises another set of questions that are likely to escape members of Congress as they examine this latest assault on the Fourth Amendment.
The framers were careful when they wrote the Fourth Amendment, as it imposes the most explicit requirements on the government found anywhere in the Constitution. It requires that all search warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.” So, if the government follows the Constitution, it cannot seek what it is unable to identify, and it cannot compel the custodian of whatever records it is seeking to do its work for it.
The proposed legislation would punish Internet-service providers that fail to share secrets with the feds. The Obama administration hopes to enable the feds to tap into Internet-service providers’ data directly from FBI offices, without having to serve the warrant or visit the Internet-service providers’ premises.
What a temptation for abuse that will become. It will compel data sharing between the government and Internet-service providers that will eviscerate what little remains of personal email privacy. It will profoundly violate the Fourth Amendment by turning employees of Internet-service providers into de facto unpaid federal agents. It also would punish all those who decline to go along with crippling fines that double every day.
Wasn’t the Constitution written to keep the government off the backs of the people? Does the government work for us, or do we work for the government?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom.”