Shredding the Fourth. The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment clearly contains a short preamble declaring the purpose of the amendment ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated"), followed by four specific requirements designed to prevent unreasonable searches.
Since the September 11 attacks, the federal government has come to believe it doesn't need a warrant or specificity to search the private property of American citizens. The Patriot Act allows the FBI to issue its own search warrants -- without judges -- so long as they call them "National Security Letters" (NSLs), and NSLs have served as the federal impetus to engage in the widespread data mining of Americans' personal information. An internal Justice Department review of FBI use of NSLs found that they had "circumvented the requirements of the Electronic Communications Privacy" law passed by Congress, contained "factual misstatements," and often had nothing to do with any active investigation requested by prosecutors.
The FBI demanded under the Patriot Act that Internet service providers (ISPs) install recording devices to spy on their customers at will, using a barrage of NSLs to demand the data. Nick Merrill of Calyx Internet Access, an ISP start-up, was one of those telecommunications providers. He sued in court to stop the attack on his customers' privacy. But he had to sue anonymously in order to avoid being charged under the Patriot Act with a felony that could earn him five years in prison. NSLs come with a gag order. Merrill endured six years of silence before winning (in part) a court case that allowed him to inform the world that he had to install wiretapping devices on his servers, though he remains gagged about the contents of the NSL he was served back in 2004. Merrill observed that "one of the things that leapt out at me about this letter was that it was not signed by a judge. It was signed by someone from the FBI. You know, it seemed to me that that undercuts the whole system of checks and balances that we have, and I didn't believe it was legal. And I had been reading about, you know, all the new powers under the PATRIOT Act, and it just seemed to me that I didn't have much choice but to say something about it."
Extending Tyrannical Abuses
The three provisions slated to expire are:
1. The so-called "library provision," section 215 of the Patriot Act, which allows national security investigators to issue a seizure order for "any tangible thing," including gun sales records, library records, medical records, or any other private information.
2. The "John Doe" provision, section 206 of the Patriot Act, which allows national security investigators to search the private information of people, even if it does not know the name of the target.
3. The so-called "Lone Wolf" provision, which was implemented in part by the original Patriot Act and strengthened by the Intelligence Reform and Terrorism Prevention Act of 2004 and allows national security investigators to search non-U.S. persons who aren't part of a known terrorist cell and don't have known ties to a foreign government.
The Patriot Act also includes a number of other changes to the law that do not have to be extended because they were made permanent in the original Patriot Act or in the 2006 USA PATRIOT Improvement and Reauthorization Act:
• Expanded definition of wiretapping to include computer and wireless tapping;
• National Security Letters;
• Extending the duration of after-the-fact warrants for wiretapping or searches of foreign intelligence or terror suspect targets under FISA courts from 45 days to 120 days;
• A sneak-and-peek provision allowing the federal government not to notify a target of investigation that their house or property has been searched;
• A "business records" search provision that allows the federal government to place equipment at communications providers that allow it to wiretap at will and to take "any tangible thing" from a business related to an investigation, along with a provision that prohibits the businesses from announcing publicly they were wiretapped or searched (the gag order part was declared unconstitutional by U.S. courts);
• Increased authority for pen registers and other wiretap devices in communications and electronic devices.
Under the "library provision" set to sunset in May, a federal court that grants a warrant is not explicitly required to demand "probable cause" needed for a search warrant or seizure by the FBI required by the Fourth Amendment. Instead, the FBI must merely supply a "statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." "Reasonable grounds," according to the FBI, is not even close to the constitutional standard of "probable cause," although the Fourth Amendment defines "unreasonable" searches as ones that don't have a court warrant, supported by an oath, probable cause, and details of what's going to be searched and seized. The "John Doe" provision ignores the specificity requirement of the Fourth Amendment.
Senator Rand Paul (R-Ky.), a Senate Tea Party Caucus co-founder, announced his opposition to the Patriot Act renewal in a February 15 letter to his Senate colleagues because these two provisions (Library and John Doe) too closely resemble the Writs of Assistance that the British crown issued against American colonists just prior to the American Revolution:
James Otis argued against general warrants and writs of assistance that were issued by British soldiers without judicial review and that did not name the subject or items to be searched.
He condemned these general warrants as "the worst instrument[s] of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever w[ere] found in an English law book." Otis objected to these writs of assistance because they "placed the liberty of every man in the hands of every petty officer." The Fourth Amendment was intended to guarantee that only judges -- not soldiers or policemen -- would issue warrants. Otis' battle against warrantless searches led to our Fourth Amendment guarantee against unreasonable government intrusion.
But Senator Paul is in the minority, certainly in his own party. The Senate adopted the 90-day extension of the Patriot Act by an 86-12 vote in February, with only one other Republican in opposition, Utah Senator Mike Lee (also a Tea Party Caucus co-founder). The House also adopted the 90-day extension by an overwhelming vote, with Republicans mostly favoring the bill. Even so, eight House members associated with the Tea Party opposed the Patriot Act renewal. (Thirty-one Representatives affiliated with the Tea Party voted to pass the Patriot Act extension.)
In his New York Times best-selling book The Constitution in Exile, former New Jersey judge and Fox Business Channel host Andrew Napolitano calls "the Patriot Act and its progeny ... the most abominable, unconstitutional assaults on personal liberty since the Alien and Sedition Acts of 1798." Congress should be actively engaged in repealing more provisions of the Patriot Act, not extending the provisions scheduled to sunset, if they intend to honor their oath to "support and defend the U.S. Constitution."