The right to privacy — to be left alone, to engage in personal behavior and communications immune from government regulation or surveillance, to be yourself — is a fundamental human right that we all exercise every day. It is also a constitutional right since it is expressly protected by the Fourth Amendment and has been expressly recognized and upheld by state and federal courts consistently for the past 60 years.
The Fourth Amendment requirement of a search warrant prior to surveillance is intended to prevent mass spying, and it is also intended to keep the government in the lane of law enforcement based on evidence, not fear of stereotypes. These two goals are accomplished by prohibiting warrantless searches and preconditioning the application for warrants upon the existence and presentation of probable cause of crime.
Stated differently, the government’s job is to investigate crimes that have already occurred, not to predict crimes based on algorithms and demographic data. So, if the government — local, state or federal — wants to listen to phone conversations or access the data in a person’s desktop or mobile device, it must present probable cause of crime to a judge and ask that judge to authorize the surveillance.
The probable cause of crime must be presented under oath, and it must satisfy the judge that it is more likely than not that additional evidence of crime will be found in the place to be searched or on the person or thing to be seized.
This probable cause requirement both protects the privacy of those of us as to whom there is no probable cause of crime and keeps the government in the lane of law enforcement and out of the lane of crime prediction. Yet, even this has been abused by both Congress and the executive branch.
Congress abused the Fourth Amendment when it enacted the Foreign Intelligence Surveillance Act in 1978, in response to President Richard Nixon’s use of the FBI and the CIA to spy on his domestic political opponents. That abuse consisted of lowering the probable cause of crime standard to probable cause of communication with a foreign person. Thus, the FISA Court has issued tens of thousands of surveillance warrants based on this bogus lower standard, and it has granted more than 99% of requested surveillance warrants.
Question: Can Congress modify a constitutional requirement? Answer: NO. If it could, the Constitution would no longer be the supreme law of the land, but rather a facade subject to prevailing political winds.
The executive branch has abused the Fourth Amendment by its new confrontational style of enforcement. Prior to 1986, if the feds wanted your phone records, they obtained a grand jury subpoena or a judicial search warrant based on probable cause of crime and served it on your phone company. The phone company then informed you of the demand for your records and you had 10 days in which to challenge the demand in an appropriate court. In 1986, that procedure was changed to make the notification to you voluntary.
Then, after 9/11, the notification to you by your phone company and, by then, your internet service provider was prohibited, and if you are a foreign-born person, the warrant requirement was dropped.
All this produced many unsavory and unconstitutional results. As an example, if the government has a warrant for the contents of your mobile device, and it wants to intimidate you, instead of obtaining the contents professionally and peacefully from your service provider, it will confront you on a public street and forcibly seize the mobile device from your hands, as it recently did to the Mayor of New York City, a Pennsylvania Congressman and the founder of the My Pillow company.
The other unsavory and unconstitutional abuse by Congress has occurred when foreign persons communicate with Americans. Section 702 of FISA — which expires in a month — purports to remove all Fourth Amendment protections from foreign persons and from the Americans with whom they communicate.
Question: Can Congress exclude a class of persons from the express protections of the Constitution? Answer: NO. If it could, then fundamental rights and constitutional rights would cease to be rights and would be mere privileges to be doled out according to prevailing political winds. The protections of the Fourth Amendment cover all persons — American and foreign, good and bad, government friends and government foes.
Section 702 has spawned another executive branch abuse, that of purchasing private data. We know from congressional revelations that the FBI, NSA, IRS, BATF and their federal cousins have done indirectly what the Constitution prohibits them from doing directly. If they cannot get a search warrant, if they cannot find you in the database of collected warrantless communications of foreigners, they will purchase digital data of foreign communications and mine it just to see if your words are there.
Question: Can the government do indirectly that which the Constitution prohibits it from doing directly? Answer: NO. If it could, constitutional protections would be meaningless.
After the uprising in the House of Representatives this past fall that removed Speaker Kevin McCarthy in favor of Speaker Mike Johnson, those of us who believe that the Constitution means what it says expected Speaker Johnson to permit an up-or-down vote on the extension of Section 702, as he urged before he became Speaker, and we expected him to oppose the extension of Section 702 as he has in the past.
But the world of power looks so differently from the inside looking out than it does from the outside looking in. He now has hinted that he’ll insert the extension of Section 702 into a bill to fund the Department of Defense — which is irrelevant to domestic spying — thus assuring its passage.
Thus, assuring more destruction of privacy and trashing of the Constitution and Big Government as usual.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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