Tag: Fourth Amendment

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:

DON’T CHANGE A THING

Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

NSA Spying, NSA Lying, and Where the Fourth Amendment Is Going

If you want a good primer on the NSA spying disclosed so far, check out the item by Cato alum Tim Lee on the Washington Post’s WonkBlog. It’s a blessedly brief but informative run-down covering:

- mass collection of phone records;

- the PRISM program, which gathers data about Americans incidentally to its stated aim of foreign surveillance; and

- the NSA’s fiber optic eavesdropping: “[T]he NSA has a broad program (actually, several of them) to sweep up Internet traffic from fiber optic cables.”

Also, be sure to read the letter Senators Wyden (D-OR) and Udall (D-CO) sent to NSA head General Keith Alexander yesterday. In it, they point out inaccurate and misleading statements the NSA made in a recently distributed fact sheet. At a certain point, inaccuracies become willful.

On the question of whether surveillance of every American’s phone calling is constitutional, Lee notes how the government and its defenders will rely on a 1979 case called Smith v. Maryland. In that case, the government caused a telephone company to install a pen register at its central offices to record the numbers dialed from the home of a suspected robber. Applying doctrine that emerged from Katz v. United States (1967), the Court found that a person doesn’t have a “reasonable expectation of privacy” in phone calling information, so no search occurs when the government collects and examines this information.

It takes willfulness of a different kind to rely on Smith as validation the NSA’s collection of highly revealing data about all of us. Smith dealt with one suspect, about whom there was already good evidence of criminality, if not a warrant. The NSA program collects call information about 300+ million innocent Americans under a court order. And the Supreme Court is moving away from Katz doctrine, having avoided relying on it in recent major Fourth Amendment cases such as Jardines (2013), Jones (2012), and Kyllo in 2001.

Nobody knows where exactly the Court is headed with the Fourth Amendment in the challenging area of communications, but I’ve argued for reaching back to the wisdom of Justice Butler, dissenting in Olmstead (1929):

Telephones are used generally for transmission of messages concerning official, social, business and personal affairs, including communications that are private and privileged – those between physician and patient, lawyer and client, parent and child, husband and wife. The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass.

Using Metadata to Find Paul Revere

What stood out to me in David Brooks’ amateur psychologizing about NSA leaker Edward Snowden on Monday was his claim that Snowden “has not been able to point to any specific abuses.” Brooks’ legal skills are even worse than his psychologizing. He didn’t notice that the document Snowden leaked was a general warrant. It fails to satisfy the Fourth Amendment’s requirements of probable cause and particularity. That’s an abuse.

I gather that it’s hard to apply the principles of liberty and our nation’s founding charter to the new world of data. In aid of your consideration, I offer you the fun essay: “Using Metadata to Find Paul Revere,” which recounts how metadata (so-called) reveals relationships and, from the perspective of King George, sedition.

The essay concludes:

[I]f a mere scribe such as I—one who knows nearly nothing—can use the very simplest of these methods to pick the name of a traitor like Paul Revere from those of two hundred and fifty four other men, using nothing but a list of memberships and a portable calculating engine, then just think what weapons we might wield in the defense of liberty one or two centuries from now.

The present-day federal surveillance programs revealed in media reports are “the tip of the iceberg,” Rep. Loretta Sanchez (D-CA) said Wednesday after being briefed Tuesday.

In Its Bubble of Secrecy, the National Security Bureaucracy Redefined Privacy for Its Own Purposes

Rep. Jim Sensenbrenner (R-WI) is nothing if not a security hawk, and this weekend he decried the NSA’s collection of all Americans’ phone calling records in a Guardian post entitled, “This Abuse of the Patriot Act Must End.” On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency’s program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled “Thank You for Data Mining” was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge–and perhaps new shocks. The self-disclosed leaker–currently holed up in a Hong Kong hotel room waiting to learn his fate–is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call “on an ongoing daily basis” is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don’t believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, “I welcome this debate and I think it’s healthy for our democracy.”

A Brief Civil Liberties Quiz

See if you can spot the civil-liberties victory:

  1. The Supreme Court says the government can put your DNA in a national database, even if you were wrongly arrested.
  2. The State of Mississippi imposes mandatory collection of the DNA of babies born to teenage moms, neither of which is suspected of a crime.
  3. The Department of Justice is tracking and threatening to prosecute reporters, for the crime of reporting.
  4. The National Security Agency is collecting everyone’s phone records, even if they suspect you of nothing.
  5. The U.S. Senate kills a bill that could lead to a registry of law-abiding gun owners.

Answer: #5. 

Those crazy senators are looking less crazy all the time. 

Maryland v. King and the Surveillance State

Ilya, Jim, and Roger have already ably covered many of the legal issues in yesterday’s major Fourth Amendment case, Maryland v. King, in which the Court narrowly approved DNA testing of arrestees. I’ve got an article in the Daily Beast this morning using Scalia’s dissent as my jumping-off point. Excerpt:

If there’s ever a time when Antonin Scalia really rises to the occasion, it’s when he serves as the Supreme Court’s liberal conscience….

[A]long with the good [from DNA testing] comes a new potential, warned against by civil libertarians, for the authorities to use DNA access to track citizens through life. Who was at the closed-door meeting of political dissidents? Swab the discarded drinking cups for traces of saliva, match it to a universal database, and there you’ve got your list of attendees. Want to escape a bad start and begin life over in a different community? Good luck with that once your origins are an open book to officialdom.

In his dissent, Scalia warns of such a “genetic panopticon.” (The reference is to Jeremy Bentham’s idea of a prison laid out so that inmates could be watched at every moment.) And it’s closer than you may think. Already fingerprint requirements have multiplied, as the dissent points out, “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states. DNA sample requirements are now following a similar path, starting reasonably enough with convicts before expanding, under laws passed by more than half the states as well as Maryland, to arrestees. (“Nearly one-third of Americans will be arrested for some offense by age 23.”)  Soon will come wider circles. How long before you’ll be asked to give a DNA swab before you can board a plane, work as a lawn contractor, join the football team at your high school, or drive?

With the confidence that once characterized liberals of the Earl Warren–William Brennan school, Scalia says we can’t make catching more bad guys the be-all and end-all of criminal process:

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail. … I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Incidentally, some of Scalia’s most scathing passages blast the majority for dwelling on objectives that Maryland might have accomplished by DNA testing, such as establishing a John Doe arrestee’s true identity, when in fact the state knew perfectly well who Alonzo King was when it collared him. Scalia nailed this rationale as merely pretextual, and just in case you doubted that, in a Washington Post interview just yesterday about the case, Maryland Attorney General Douglas Gansler frankly acknowledged that “the real reason for the law is solving crime.” Nothing there about a need to establish arrestees’ identities. The state’s own website explaining the law tells a similar story in its final sentence when it describes the 2009 change in the law.

Minnesota Supreme Court Punts on Key Privacy/Property Rights Case

The city of Red Wing, Minnesota, has a rental property inspection program—one that’s unfortunately not unusual—whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license! The city only sometimes makes initial requests for consent as a mere courtesy, because it proceeds with an administrative warrant in the event of a refusal—without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out the contents of your medicine cabinet or choice of DVDs.

A group of landlords and tenants challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. Last September, Cato joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation and filed an amicus brief urging the Minnesota Supreme Court to confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

Last Friday, the Minnesota Supreme Court handed down its decision in McCaughtry v. Red Wing. Unfortunately, the Court decided to dodge the question of whether the government is required to obtain a warrant to inspect a residence without individualized probable cause under the U.S. or Minnesota Constitution.

The court’s reasoning is maddening: Red Wing’s ordinance allows judges to imagine individualized standards even when the city doesn’t present any individualized evidence when applying for a warrant. Moreover, the Court determined that the challenge was facial and thus the law would need to be unconstitutional in all of its potential applications in order to be struck down. Because some warrants could be constitutional, the Court ruled against the homeowners, and had absolutely nothing to say about the propriety of warrants issued without individualized probable cause. It did this even though the city has never sought such a warrant and has never said it has any interest in asking for one. The court was clear that its holding had absolutely nothing to say about whether a warrant issued without individualized probable cause would be unconstitutional.

So after nearly seven years of litigation, the plaintiffs are left where they started: these warrants may be unconstitutional, but the courts won’t say so. As a result, Minnesota residents remain subject to unconstitutional, over-broad, and intrusive searches of their homes, belongings, and lives.

There was a small silver lining in all this, a concurrence by Justice Paul Anderson, who said that he agreed with the court’s (unanimous) opinion but that the Minnesota Constitution does require individualized probable cause to obtain a warrant to enter someone’s residence.  Although no other justices joined his opinion, this is the first statement by a state supreme court judge ever that narrows administrative warrants in the context of home inspections since the U.S. Supreme Court’s unhelpful and unclear Camara decision in 1967 started the trend toward such programs. (Telllingly, this concurrence was Justice Anderson’s last official act; he retired on Friday.) And that will be something to use on this issue going forward, whether in state courts or in federal courts, to eventually ask the U.S. Supreme Court to reconsider Camara.