This column has recently outlined the specious arguments offered by the feds when they have been caught spying on ordinary Americans. They assert that the Fourth Amendment to the Constitution — which requires a search warrant prior to spying — applies only to law enforcement and not to domestic surveillance. This argument not only defies the plain language of the amendment; it defies history and common sense.
The language of the amendment protects the privacy of all “people” by affirmatively declaring that the right to privacy in “persons, houses, papers, and effects” may be violated by the government only by the use of a search warrant, signed by a judge, based on probable cause of crime, and which specifically describes the place to be searched or the person or thing to be seized.
The language of the amendment, and the language of statutes and court rules written at the state and federal levels to implement the procedures for seeking search warrants, makes no distinction on the nature of what the government seeks — evidence of crime or evidence of foreign interests.
Stated differently, a fair and neutral reading of the amendment makes it clear that the probable cause and specificity requirements were intended not only to protect privacy from Big Brother but also to compel the government to focus on crimes after they occur and not on predicting them.
The same two requirements — probable cause of crime and specifically stating what or whom is to be seized — also preclude the hated British practice of using general warrants. General warrants did not require the government to show probable cause of crime, just governmental need, and did not specify the place to be searched or the person or thing to be seized.
On the contrary, general warrants — which were called writs of assistance — were issued so as to assist British agents, both law enforcement looking for tax evaders and intelligence agents looking for revolutionaries, by authorizing them to search wherever they pleased and seize whatever they found.
A typical example of all this surrounded the Stamp Act, enacted by Parliament in 1765. This law required all colonists to purchase stamps; they were actually inked images of royal designs transferred to a document for a fee. The stamps were required to be on all documents, papers, letters, books, pamphlets and posters — anything containing the written or printed word. How did the British government know if colonists complied with the Stamp Act? Answer: writs of assistance.
Thus, with a general warrant issued by a secret court in London enabling them to search wherever they wished and seize whatever they found, British agents entered Colonial homes ostensibly looking for stamps but truly looking for revolutionary materials so as to anticipate who might rebel against the king.
It was against this backdrop that the Fourth Amendment was ratified. Any argument today that the amendment does not protect people from all government, but only law enforcement, is historically disingenuous and intellectually dishonest. When the Supreme Court last looked at all this in 2018, and ruled that the feds need search warrants to download or track mobile devices, it made no distinction between spies and cops; and cops acting like spies.
Despite all this, the feds continue to spy on us without a warrant.
Last week, this column revealed the FBI’s admitted use of the NSA and the CIA to spy on Americans. Why spy? First, it is easier and cheaper than developing probable cause of crime and presenting the developed evidence to a judge. And second, the federal appetite for surveillance is so out of control that it extends to ordinary Americans as to whom there is simply no probable cause of crime.
Stated differently, the feds would rather cut holes in the Constitution than go through the pain and expense of complying with it.
Last week, we learned that all this has reached a new and more dangerous depth. The Wall Street Journal reported that the feds and state and local law enforcement have been using a bank clearinghouse as a means to spy on those who wire or receive international fund transfers.
The clearinghouse is called the Transaction Record Analysis Center, or TRAC. If one uses a common means of wiring not directly from a bank account of a bank in the U.S., the wire is cleared by TRAC. TRAC is a private entity, thus it is not restrained by the Fourth Amendment.
Yet TRAC regularly makes its records available not only to the feds but also to more than 600 state and local police departments.
If one uses a wire service that uses TRAC, such as Western Union, MoneyGram or Euronet, and does so directly from one’s bank account, then TRAC learns all that the bank account contains, such as checks paid and deposits made. When governments access data from TRAC and do so without a subpoena from a grand jury or a search warrant from a judge, they are knowingly and intentionally violating the Fourth Amendment that their employees have sworn to uphold, no matter the purpose of the access.
What have we here?
We have yet again — after the FBI using Twitter and the Department of Homeland Security using Facebook — the government doing indirectly through a private entity what the Constitution expressly prohibits it from doing directly. This symbiotic relationship between TRAC and the 600 governments it serves has effectively made TRAC an arm of government at all levels, and thus a court can and should impose the Fourth Amendment’s restraints on this creepy clearinghouse.
What has become of personal liberty in our once free society? The government, already possessed of our property, which it steals under the guise of taxation, can never be trusted with our liberty, which it crushes behind our backs. Why do we repose the Constitution for safekeeping into the hands of those who trash it?
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.