May 26, 2015 - Just like the infamous PATRIOT Act before it, the so-called USA Freedom Act would continue the unprecedented warrantless searches of Americans’ personal records in direct defiance of the Fourth Amendment.
The routine, indiscriminate searches of Americans by the British Crown is what John Adams believed began the American Revolution. The American Founders wrote the Fourth Amendment to assure these injustices and indignities were never practiced upon Americans: “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.”
Before the government can search through your personal records, it must prove to an independent judge that there is probable cause to believe you have committed a crime and it must specify what it is looking for.
When it enacted the PATRIOT Act, Congress ignored Benjamin Franklin’s warning that “Those who surrender freedom for security will not have, nor do they deserve, either one.” Instead, it opened a disturbing era in which the private, personal data of millions of Americans was seized without warrants.
The PATRIOT Act was on its last legs, due to expire on May 31st. Revelations of abuses had turned the American people overwhelmingly against it and the courts had begun to step in, with the Second Circuit court of appeals recently ruling the bulk collection of data to be illegal.
In a cynical act of congressional sleight of hand, Congress is responding not by letting this law expire, but rather by repackaging it as the “FREEDOM Act,” and selling it as “prohibiting NSA mass data collections.”
Instead of the government seizing and storing personal data itself, the “FREEDOM Act” orders telephone companies and internet service providers to store it for later perusal by the government – a distinction without a difference. In either case, Americans’ personal records are placed outside their control awaiting only a rubber-stamped order from a secret FISA court to fish through.
It reauthorizes Section 702 of the FISA Amendments Act, which the NSA uses to capture the contents of emails, text messages, browsing histories and other private communications of any American without probable cause or warrant, simply because data from a foreign target may have once flowed through the same server.
And it continues the practice of seizing “second hop” data. This means that if a basement blogger suspected of sympathizing with Al Qaeda calls a pizzeria, the phone numbers of everyone who has called that store are subject to the government’s dragnet.
Our Constitution’s adversaries invariably justify trampling the Fourth Amendment to make it easier to catch terrorists. Imagine how easy it would be to catch terrorists by placing a soldier in every house! The Third Amendment protects us from this abuse just as the Fourth Amendment protects us from warrantless searches of our records.
For 224 years, the Bill of Rights has protected every American from retribution for expressing their political beliefs. It protects a free press from intimidation; it protects the free and open expression of religious beliefs; it protects the means of individuals to protect themselves and their freedom; it protects every individual from having their records searched or their property seized without due process of law. In recent years, these fundamental rights have been made a mockery by the agents of this administration from the IRS to the Justice Department to the NSA.
The Director of National Intelligence, James Clapper, brazenly lied to Congress when he denied the spying program existed at all. We also learned that this administration has taken confidential tax information belonging to political opponents and leaked it to political supporters. Is there anyone so naïve as to believe the same thing won’t be done with phone and Internet records if it suits the designs of powerful officials?
America has faced far greater threats through the years without surrendering our Fourth Amendment rights out of fear and panic. Americans are made of sterner stuff.
This column was published in the Sacramento Bee on May 25, 2015.
