Nov. 29 was the deadline for the end of NSA bulk collection of telephone records as established by the USA Freedom Act six months ago. This ended the Patriot Act, revealed by Edward Snowden, to have been the authority used to collect the bulk phone records of hundreds of millions of Americans, a certain big government invasion of privacy, which incensed civil libertarians. Libertarians and Constitutionalists, on Fourth Amendment concerns, led by Sen. Rand Paul brought the demise of the hated Patriot Act. This ends government surveillance of its citizens. Or does it?
The USA Freedom Act called for a six-month transition period allowing NSA to continue bulk collection as before, but at its end NSA must only access targeted data from telephone providers with judicial approval. Unfortunately for Constitutionalists it, like its predecessor the Patriot Act, nullifies the 4th Amendment requirement of “probable cause” and thus is as unconstitutional as the law it replaced.
Under the new law, the federal government forces telephone companies to collect the metadata instead and store it at their expense. The NSA may still access the information with approval of the secret FISA Court (a court that almost never denies permission) if the government maintains there is a reasonable suspicion that the phone data of a target is relevant to a terror investigation. What is missing is that Congress cannot simply pass a law nullifying a portion of a constitutional amendment. Its only option is another constitutional amendment.
Unfortunately for big government advocates, collecting and storing data on its citizens is not cited or even alluded to in Article I, Section 8 where the powers of the federal government are itemized. Nor has such authority been added by way of an amendment to the Constitution.
Fortunately for us this behavior is specifically forbidden in the Fourth Amendment which 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 amendment was specifically designed to prevent government spying on its own. “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated” is the strongest possible language conceivable.
Prior to the American Revolution the British government used what was called “a general search warrant” which allowed their agents to harass the people thought to be doing, or saying, something disapproved by the government. No such flexible interpretation was allowed in our government until recent times. In our day, computers, cellphone messages and phones are our “papers and effects.” Simply confiscating their messages and storing them, perhaps indefinitely, should be no different than the police walking into your home and taking from you any letters you have received or are about to send and housing them in police headquarters in case they should need them to use against you in a later day. As a first principle your house and papers are off-limits to the government.
Moreover, unreasonable was not to be decided by the police. All searches are unreasonable without probable cause that you are doing something harmful to others. Probable cause must be decided independently from the police unless you are in the act of doing something unlawful and immediate police response is necessary. Elected judges exist for assessing probable cause. Should they get too cozy with the police there exist other checks to keep them restrained as, for example, their defeat in the next election. As initially interpreted there were to be few federal laws, hence few unelected federal justices. This was to be a state, county, or city matter. Judges rousted out of a good sleep in the middle of the night were not likely to be too happy about having to assess frivolous charges.
There exists no constitutional authority for a blanket extraction of all our electronic data. Judges swear an oath to preserve the Constitution. They are not to perform with a private view outside that document. Notice also the specific restrictive phraseology with respect to this power; they are to particularly describe “the place to be searched, and the persons or things to be seized” — evidence that something unlawful already happened. There is no authority for a “fishing expedition.” NSA spying on its own citizens without a search warrant, formerly under the Patriot Act and extended now under the USA Freedom Act, through proxy corporate entities charged with keeping our records for potential government inspection, is clearly unconstitutional.
“No, federal government!” You may argue that you are only protecting us from bad people out there by gathering our private information without our consent or knowledge, but who protects us from you? Historically far more terroristic acts happen under government authority than under private authority. Fortunately the Constitution does when enough use it in their voting practices and those we elect honor their pledge to protect it, and us, from you.
To read more of Dr. Harold Pease’s weekly articles, visit www.LibertyUnderFire.org.