Home Judge’s Opinions The Coming War on Privacy

The Coming War on Privacy

by Andrew P. Napolitano
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When Attorney General Merrick Garland was asked at his confirmation hearings earlier this month what his priorities would be if confirmed, he responded immediately that it would be a vigorous pursuit of domestic terrorism. He did not say he would lead vigorous prosecutions, just vigorous pursuits.

This is dangerous business for the Department of Justice because it transforms its role from prosecuting crimes after they happen to predicting who would commit crimes that never happen.

How could the feds predict crimes? They would attempt to do so by a serious uptick in domestic surveillance of broad categories of people based on political and ideological views. The government loves to cast out fishing nets — so to speak — and then intimidate or prosecute whomever they bring in.

The National Security Agency — America's 60,000-person strong domestic spying apparatus — already captures all data transmitted on fiber optic cable into, out of, and within the U.S.; that's every email, text and phone call. But they don't admit to this. When the FBI desperately sought to gain entry to the cellphones of two deceased mass murderers in San Bernardino, California, a few years ago, the NSA would not help them because doing so would acknowledge the NSA's mass warrantless spying.

Stymied by their own colleagues' refusal to admit their unconstitutional behavior, but emboldened that the NSA could get away with this, federal agents either would break the law themselves by engaging in warrantless surveillance or obtain warrants from the Foreign Intelligence Surveillance Act court by claiming foreign terrorism as a pretext for domestic law enforcement surveillance.

Under the unconstitutional standards employed by the FISA court, if the feds present probable cause of an American's communication with a foreign person, the FISA court would issue a search warrant for surveillance of all communications of the American.

This is unconstitutional because the standard for obtaining search warrants from a judge is articulated in the Fourth Amendment, which neither the Congress nor the courts can change. That standard is probable cause of crime — is it more likely than not that the place to be searched contains evidence of crimes — not probable cause of communication with a foreigner.

The former is a high standard intended to compel the courts, before issuing search warrants, to take account of the natural right to privacy, prevent government fishing expeditions and force the government to focus its law enforcement efforts on real, not imagined, crimes.

The FISA standard — which morphed by a series of secret judicial opinions from probable cause of being a foreign agent to probable cause of communicating with a foreign agent to probable cause of communicating with a foreign person — is far easier for federal agents to demonstrate than is probable cause of crime. It means that a call to my cousins in Florence is a sufficient basis for the feds to get a search warrant to legally surveil all of my communications — telephone, texting and emails.

FBI and other federal agents know this. They know how easy it is to get a warrant from the FISA court. The most recent statistics revealed that it granted 99.96% of all surveillance applications.

When FBI agents go to the FISA court with probable cause of communication with a foreign person, but they are really looking for their target's domestic criminal communications, they have engaged in an act of corruption, deceived the court and cut holes in the Constitution they have sworn to uphold.

Once they have all of a person's communications, their plan is to find something that would constitute probable cause of crime or enable them to use fear of exposure to induce the person to work for them undercover.

If your neighbor tells you on the phone how happy he is in his anti-government group, and then someone in the group trespasses on government property and is arrested, expect a knock on your door from the feds who will demand to know what you knew and when you knew it. If the trespass is a felony, they will claim that they can prosecute you for your silence. This, too, is unconstitutional. Silence is protected by the First Amendment.

This is the danger of the Garland devotion to predicting who would commit crime; and it will get worse. Expect the next legislative step to be proposals that impose the legal obligation to report suspicious activities — and the failure to do would be a crime. This would turn the U.S. into East Germany where thousands were prosecuted for failure to report their neighbors, friends and family; and thousands more suffered from prosecutions based on false reports.

The Fourth Amendment was written to prevent this. Under the Constitution, the government may not seek punishment for silence, surveil for beliefs or charge for crimes not committed. But if a wired undercover agent can get someone the government fears to inculpate himself with his words and then persuade that person to take a small step in furtherance of those words — even if no actual crime is committed — this is enough to charge conspiracy; the prosecutor's favorite crime because it is the easiest to prove.

In the years following 9/11, hundreds of folks in America were set up by the feds and prosecuted and convicted for crimes that they never committed, but which they merely agreed to commit when persuaded by an undercover agent.

The government loves to give the impression that it has caught bad guys before they struck, thereby keeping us safe. Don't believe it. The government's first task is to keep us free. But when it violates the Constitution, it keeps us neither safe nor free. Who will keep us safe from the government?

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