Home Judge’s Opinions The Feds Are Buying Our Emails!

The Feds Are Buying Our Emails!

by Andrew P. Napolitano
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“The Framers … conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”

— Justice Louis Brandeis (1856-1941)

While we are all consumed with Joe Biden’s bumblings and Donald Trump’s trials, the federal government’s rapacious appetite for spying on the private behavior of Americans as to whom it has no suspicion of wrongdoing continues unabated. Last week, Sen. Ron Wyden, D-Ore., revealed that the National Security Agency has been buying huge caches of Americans’ text messages and emails from Big Tech and the FBI has been using this data to predict crime. Both of these undertakings are profoundly unconstitutional.

            Here is the backstory.

            After the Constitution was ratified in 1789, when five of the 13 states threatened to secede if the document was not amended so as to protect personal liberty from federal encroachment, it was soon amended to recognize the existence of natural rights and to keep the government from interfering with them. As Justice Brandeis wrote 140 years afterward, the most comprehensive of those rights was the right to be let alone, which today we call privacy.

            To secure that right, the Fourth Amendment was ratified. The purpose of the Fourth Amendment was to prevent the government from utilizing general warrants by requiring instead judicially authorized search warrants issued under narrow circumstances and to restrict government privacy invasions to prosecuting crimes that had already been committed. James Madison, who drafted the Constitution and the Bill of Rights, shared the hatred that the colonists-turned-Americans had for unrestrained government.

            A general warrant was a document issued by a secret court in London authorizing the bearer of the document, usually a British government agent, to search wherever he wished and to seize whatever he found. The applicant for the warrant needed to demonstrate to the court only that the warrant was intended to unearth something that the government wanted. Because these warrants did not specify the object of the search, there was no limit to them.

            Hence Madison’s language in the Fourth Amendment preserving privacy but permitting the government to invade it only upon a showing, under oath, of probable cause of crime, and then requiring the warrant to specify in writing the place to be searched or the person or thing to be seized. General warrants were used to predict crime and revolutionary behavior. The Fourth Amendment outlawed invasions of privacy for such governmental predictions.

            After 9/11, in the collective spirit of fear, timidity and subservience to the presidency, and in utter disregard for its members’ oaths to uphold the Constitution, Congress enacted the Patriot Act. It permits one federal agent to authorize another federal agent to search and seize whatever the latter wishes to look at and capture so long as it is in the possession of third-party financial institutions.

            Over the years, the definition of “financial institution” has been radically expanded by both legislation and presidential orders so as to include nearly every conceivable entity that has any records about any person in America — from banks to hospitals to lawyers to merchants to credit card issuers to telecoms and computer service providers and even the post office.

            At the same time that the Patriot Act was being expanded, the NSA — America’s 60,000-person strong domestic spy apparatus — was not even pretending to follow legislation. We know from Edward Snowden’s revelations — which have never been disputed by the government — that since 2003, the NSA has captured not only the records of Americans held by third parties but also the records of every keystroke touched by every person in America and every telephone call transmitted over fiber-optic cable. That includes every email, text message and piece of data — even what was deleted. This warrantless mass surveillance continues today unabated.

            Also unabated and equally unlawful and unconstitutional is the government’s use of cell towers as monitors of movement. Whenever anyone travels with a mobile device in the U.S., the nearest cell tower picks up signals from the mobile device, even if turned off. By capturing all the data the towers amass, the feds can effectively follow any person with a mobile device in real time.

            How does the government get away with this?

            The feds have labored mightily to keep all of these constitutional violations as far from judicial scrutiny as they can. They know that all of this violates the Fourth Amendment. If their nefarious behavior, which we know they have used on the president of the United States and on justices of the Supreme Court, comes under judicial scrutiny, the feds will argue that the Fourth Amendment only pertains to criminal prosecutions and not to domestic spying; thus, they can ignore it when they spy.

            They have made up this nonsense out of thin air. There is neither a hint in the language of the amendment nor a whiff in its history to support that argument.

            But purchasing data that cannot be subpoenaed in order to predict crime has truly reached a new unconstitutional low. It violates the words and values of the Constitution. It strips us of personal dignity. It deepens our slavery to the state.

            Our birthright is life, liberty and the pursuit of happiness — not to mention getting into Heaven. How can we do any of this if the government we have hired to preserve our liberty is surreptitiously destroying it?

            Brandeis’ language about being let alone, written in 1928, is today the law of the land, but the feds ignore it. He wrote that there is more to life than owning material goods. There is the fulfillment of spiritual, intellectual and cultural goals and the achievement of the heart’s aspirations, the freedom to be yourself — none of which are any of the government’s business.

            Why do we permit the government to assault our most basic freedoms, under the law or under the table?

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