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.
4th Amendment to the US Constitution.
So yesterday we were told by
The Guardian UK that the Justice[sic] Department ordered Verizon (and most likely other companies, we shall see) to turn over call logs of it's customers for all calls made from the USA and regardless of whether they were domestic or foreign in it's outbound connection This was done with a warrant from the FISA court.
Writes The Guardian:
The unlimited nature of the records being handed over to the NSA is extremely unusual. FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.
The specific issue at hand:
"We believe," they wrote, "that most Americans would be stunned to learn the details of how these secret court opinions have interpreted" the "business records" provision of the Patriot Act....
Such metadata is what the US government has long attempted to obtain in order to discover an individual's network of associations and communication patterns. The request for the bulk collection of all Verizon domestic telephone records indicates that the agency is continuing some version of the data-mining program begun by the Bush administration in the immediate aftermath of the 9/11 attack.
The NSA, as part of a program secretly authorized by President Bush on 4 October 2001, implemented a bulk collection program of domestic telephone, internet and email records.
I wrote an
11 part series entitled American Big Man in which I demonstrated the non-constitutionality of the Patriot Act as well as the dangers that not holding Bush and his co-conspirators responsible would have to the US Republic. Therefore I find nothing surprising that Obama, the so called constitutional lawyer, would be doing the
same thing that Bush did.
I find it particularly fortuitous that this revelation came on the heels of the 4th Amendment decision out of the Supreme Court. In that decision I found myself in the camp with A. Scalia. The argument that he put forth in his dissent (signed on by the so called “liberal members” of the Court) apply directly to this case. Lets look at that argument and then apply it to the issue with the Verizon court order.
The question before the Supreme Court was whether the police can take a swab of your bodily fluid by
sticking something IN your body without a warrant. The stated purpose of that
search and seizure was to “identify” the arrested person.
Scalia pointed out quite clearly that the defendant in the case had already been identified and known to the state. The
search of his body and the
seizure of his bodily fluids from
inside his body was
not to identify him but to identity some other evidence for some
other crime that the defendant was
not arrested for.
For those confused by this you need to understand that when the police are interested in you they can approach you and ask for your voluntary cooperation. If they want your DNA they can ask you for it but you don't have to give it to them (and you should not). You are under no obligation (5th amendment) to cooperate with the police unless you are arrested. In order for a police officer to search your property (and your body and it's contents is
your property) an officer must get a warrant. That warrant cannot be issued unless there is probable cause. The warrant must say what the police are looking for as well.
Of late the “what you're looking for” has been expanded to mean just about any and everything you own. I think that has constitutional issues as well and is possibly how the case came to the Supreme Court.
The state cannot in the process of trying to convict you of the crime it arrested you for, then up and decide that it will “take the opportunity” to “search you” for evidence of some other crime it can find you guilty of.
Say for example you smoked a joint on Monday. On Tuesday you're arrested for shoplifting. While under arrest the police order you to take a urine test (non-invasive) and discover THC in your urine and decide to prosecute you for unlawful use of a controlled substance. Just like in the case before the supreme court, the bodily fluid clearly connects the individual with a crime. It didn't hurt the arrested person to give the urine. As a matter of fact it is far less messy to get urine into a cup than it is to have ink removed from your fingers. And urine, like a cheek swab, in an entry into the body, a search and a seizure.
The majority of the court felt that since it wasn't a “big deal” and as “easy as a fingerprint” (which I actually question now for anything other than matching to the scene of the crime) that it's permissible. Never mind that it is in fact a search and seizure. Never mind that, in this case at least, it was a search and seizure of evidence for an entirely unrelated case. So essentially the Supreme Court's opinion is that the 4th Amendment isn't at issue so long as it's not “inconvenient”.
The obvious abuse situation here is that the state will decide to arrest someone for anything and then use that as a pretext to get DNA (or anything else deemed not “inconvenient”) from that person in order to discover if they have committed or are implicated by that evidence in another crime. Here is the crux of the problem: The assumption that the state can gather evidence from you, without a warrant to attempt to connect you to a crime without any reasonable suspicion that you did in fact commit a crime. With no evidence other than the one it got via search and seizure without a warrant.
This is what the Bush administration was doing and it is what the Obama administration has been caught doing. None of the persons who Verizon was asked to turn over evidence on are or were suspected of any crime whatsoever. The government has simply taken the position that because it
can grab “evidence” that may “incriminate” you without “inconveniencing” you (or itself since there is a a backdoor in the FISA statute that allows after the fact warrants) with a “property” search. Furthermore the government will assert that the phone records are not
yours but are actually the property of Verizon therefore
you didn't have to be notified nor did you need to have a warrant presented to
you.
Of course there are folks who will [continue] to say that if one hasn't done anything wrong then one has nothing to worry about. These Benthamites, don't care about limited or constrained government that ought not have the power to intrude on you and your business without documented reasonable reasons for for why it should be involved in your business. These people, who no doubt see themselves as children under the watchful eye of their parent (Government).
So I'm not surprised that the Obama administration has done what previous administrations have done without penalty. I'm certain the next administration will do the same.
