Fourth Amendment   1 comment

Fairbanks is a big military town, so no one should be surprised that I know a lot of soldiers of various ranks. I’m writing a book that involves soldiers, so naturally, I end up asking the soldiers I know for their advice.

But I’m kind of a borderline anarchist, so those interactions can get sort of interesting. Ah, the conversations I can get into with those who would be our rulers!

A friend (I do count him as a friend, even thought we thoroughly disagree and I consider him the worst kind of tyrant) argues that we would be safer as a society if the government could listen to all of our conversations and read our emails and text messages. When pushed (because I made him angry and frustrated), he admitted that the government ought to have the authority to kick down any doors if it thinks it has a good reason to do so. He believes this would make the country safer.

Possibly, but who would want to live in the former Soviet Union?

Our Founders had never seen totalitarianism (the technology for making it happen did not yet exist), but they knew they didn’t want to live in a country where the government had absolute power over the citizens. They had tasted of tyranny when the British had been in charge and they didn’t want to return to that. So they ratified the 4th Amendment. Justice Louis Brandeis called “the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” That line comes from his dissent of the first wiretapping case to reach to Supreme Court — Olmstead v. the United States (1928).


Roy Olmstead was a bootlegger who was convicted of that heineous crime on the basis of overheard telephone conversations. The government had tapped the phone at his workplace without breaking and entering, but they had not obtained a warrant for the tap. The Supreme Court decided that Mr. Olmstead had no right to privacy since the tap wasn’t placed by illegal means. Brandeis dissented.

Eventually, the Brandeis dissent became the law. The Fourth Amendment, which protects the privacy of our “persons, houses, papers, and effects,” was interpreted to cover telephone conversations and eventually emails and text messages. If the government wants information contained in those communications, it needs to obtain a search warrant, which the Fourth Amendment states can only be given by a judge — and only if the government can show probable cause that evidence of a crime can be obtained in the communications it wants to listen to or read.

If the government does not obtain a search warrant and listens to phone conversations or reads emails or text messages anyway, then attempts to use what it heard or read to acquire other evidence or directly in the prosecution of a defendant, the government has engaged in unlawful activity. The information becomes “fruit of the poisonous tree”.

Evidence that is the fruit of the poisonous tree has been inadmissible in federal criminal prosecutions in the United States for the past 100 years and in state criminal prosecutions for the past 50 years.

Welcome to the new day.

We know about the super-secret court established by the Foreign Intelligence Surveillance Act (FISA), reaffirmed by Congress last year under the USA “Freedom” Act. Has anyone besides me noted a trend in the name of federal statutes. They seem to produce the opposite results of what their names imply. There is no freedom to be found anywhere near the USA Freedom Act.

It’s not constitutional, but Congress authorized the FISA court to issue search warrants based on governmental need. Of course, you and I know the government can always claim that it needs whatever it wants. The FISA court does not require a showing of probable cause for its warrants. The myth is that the government is listening to or reading words by foreign people for foreign intelligence purposes only, not for prosecutorial purposes of American citizens.

The Constitution is plain. The 4th Amendment protects all people in the United States, American or foreign, from all parts of the government for all purposes, not just criminal prosecutions. Yet the FISA court still grants general warrants that allow the government to look where they wish and seize what they find. Our innermost thoughts are subject to the prying eyes of the intelligence community, 4th Amendment be damned.

One of its selling points of the USA Freedom Act to Congress was that it would permit the FISA court to appoint a lawyer to hypothetically challenge some of its behavior. The lawyer appointed challenged the policy of the National Security Agency, the federal government’s domestic spying agency, of sharing data it acquires via the unconstitutional FISA warrants with the FBI. She argued that the data sharing goes far beyond the stated purpose of the FISA warrants, which is to gather foreign intelligence data from foreign people, not evidence of domestic crimes of anyone whose emails might be swept up by those warrants.

We all know, or should after Edward Snowden, that the NSA actually makes its repository of raw data from emails and text messages available for the FBI to scour at will, without the FBI’s obtaining a warrant issued by a judge as required by the 4th Amendment.

In November, the FISA court rejected the hypothetical challenge of its own appointee and ruled that the NSA could continue to share what it wants with the FBI. That ruling just became public knowledge last week.

I object. The hypothetical nature of the challenge is ridiculous. Federal courts do not exist in a vacuum and they cannot render advisory opinions. They hear real cases and real controversies involving real plaintiffs and real defendants. There is nothing hypothetical about the damage their scrutiny causes, so entering into a law school-like moot court is ludicrous. But watch as the state and federal law enforcement start supping on this fruit of the poisonous tree.

FISA and the USA Freedom Act were enacted under the pretense that data collected under them would be used for foreign intelligence purposes, to thwart terrorism attacks, but if the FBI is able to obtain that data for use in ordinary criminal prosecutions, it contradicts the 4th Amendment.

I like walking down the street without fear that my favorite coffee shop is going to explode, but I also like my freedom and privacy. I’m not convinced that giving my freedoms up will keep that coffee shop intact. I am much more afraid of tyranny than terrorism.

When those who swore to uphold the Constitution defy its core principles, who is going to keep us safe from them?

Posted April 30, 2016 by aurorawatcherak in Liberty, Uncategorized

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One response to “Fourth Amendment

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  1. Great points!


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