We Must Not Abuse the Fourth Amendment

Governments, militaries, and civilizations sometimes ignore history to justify their actions against individuals. A bit of history is important here.

When the British controlled the Colonies, they heavily taxed the Colonies. Citizens had to pay a tax on goods they brought in to the Colonies.

The Colonies had no say on the imposition of those taxes. That is another issue.

The King issued writs of assistance. What that was was a piece of paper allowing the British military to go into businesses and homes, unreasonably, to search to see if the Colonies were paying the tax on imported goods.

For example, John Hancock was a merchant. They would search his business to see if he had a tax stamp on the rum he brought the Colonies.

The right of privacy and the right to say something about your taxes were two reasons for the American Revolution that came about. The right of privacy is a natural right, as Thomas Jefferson said, one of the rights given to us by our Creator.

So, our ancestors wrote the Fourth Amendment, unique to the United States, and here is what it says: ‘‘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’’—that means the officer has to swear to it—‘‘and particularly describing the place to be searched, and the persons or things to be seized’’—Fourth Amendment.

So what does that have to do with us today? I will explain.

Congress has passed the FISA legislation, the Foreign Intelligence Surveillance Act, which allows government to go after terrorists and people who are working as an agent of a foreign government and search their information.

They go to a secret court and get a secret warrant—it is called a FISA warrant—from a FISA judge to allow that search of all that information. Separate the bad guys from Americans who they may be communicating with unrelated to terrorism. They may be cousins talking about whatever.

But government, our government, NSA, seizes that information on Americans— emails, conversations, text messages— seizes all that information and keeps it forever. And here is what happens in the violation of Americans’ right of privacy: Government then can go back into that information, unrelated to terrorism, to search to see if those people are paying their taxes.

Maybe somebody didn’t pay their taxes on importation of Irish whiskey. So the government, IRS, files a criminal case against that American citizen. 

Remember, all of that information was based upon no probable cause warrant issued by a real judge. We are getting ready to reauthorize, maybe, FISA, the Foreign Intelligence Surveillance Act.

Before we do that, we need to protect Americans’ right of privacy. It is in a section called 702.

It really gets down in the weeds. 702 has been abused by government to seize American information and then keep it forever. Government then peruses that, based upon their high-tech guys in the NSA, to see if crimes were committed or not.

They have no warrant, no probable cause, nobody sworn to the warrant. I used to be a judge.

I signed lots of probable cause warrants. But here it is just seized because government says: Well, we have got it because we were looking for a terrorist and it is an incidental search, and we want to keep it.

That is a violation of the Constitution. We should make sure Americans’ right of privacy is protected before we reauthorize FISA. I include in the record this article, ‘‘Secret Court Rebukes NSA for 5-Year Illegal Surveillance of U.S. Citizens,’’ to illustrate. 

We must remember history. We must not abuse the Fourth Amendment.

It is Congress’ responsibility to protect the natural right of citizens’ right of privacy. Get a warrant or don’t make the search.

And that is just the way it is.

 

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