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Unfortunately, Congress Needs to Pass This Fourth Amendment Reminder
A Legislative Refresher Course
Our Constitution’s Fourth Amendment reads as follows: “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.”
As with nigh all the rest of our Constitution, the federal government has long been ignoring the Fourth. Likely the most notorious example is the National Security Administration (NSA)’s bulk data collection. Which is the Feds: “(S)toring the online metadata of millions of internet users for up to a year, regardless of whether or not they are persons of interest to the agency….”
The NSA has been amassing so much data on persons “not…of interest” - that it built a $1.2 billion data center that’s seven times larger than the Pentagon. (If you’re questioning whether the Fourth Amendment’s “papers” protection applies to digital data - imagine hitting “Print.”)
Let me guess what you’re wondering now: How could the NSA possibly be issued this sort of mass, blanket warrant, under the auspices of the Fourth Amendment - if millions of these persons are “not…of interest?” I.e. - totally devoid of any probable cause? A very reasonable question.
The NSA laid claim to the authority to do this under the auspices of the Patriot Act. Which is not how things are supposed to work. Congress can’t pass laws that eviscerate Constitutional protections - they must amend the Constitution to eviscerate said protection. So, of course, the poorly written Patriot Act - is trumped (no pun intended) by the Constitution.
The Senate has long been ignoring another Constitutional charge - to properly vet federal judges prior to confirmation. So our judiciary is addled throughout by men and women in black gowns - who shouldn’t be. Because they impose their personal policy preferences - rather than rule within the confines of the Constitution.
Even under these conditions, we do occasionally get good legal decisions. In May 2015, the 2nd U.S. Circuit Court of Appeals ruled the NSAs build data collection is unconstitutional. In response, President Barack Obama’s Attorney General Loretta Lynch said: “she was unaware of privacy violations under its existing program.”
Madame Attorney General’s blissful ignorance - is emblematic of the Washington, D.C.-wide problem. (As, too, was her being confirmed AG by a yet-again-too-compliant Senate.)
And, of course, the Feds aren’t just massively overreaching on domestic data - they are overreaching overseas as well.
Under the auspices of the now-woefully-outdated 1986 Electronic Communications Privacy Act (ECPA), the Feds obtained a warrant against tech giant Microsoft. With which they tried to collect data - stored on servers Microsoft has outside of the United States (in this instance, in Dublin, Ireland).
This would be horrendously bad precedent - as tin horn dictators the world over could and would start looking to get at data contained within our borders. To allow the Feds to do this to Microsoft would be to allow one of the worst genies ever out of its bottle.
Thankfully, the very same Second Court of Appeals that dumped the NSAs bulk data collection agreed - and unanimously told the Feds they couldn’t have access to Microsoft’s overseas servers. (God bless them.)
The very same Attorney General Lynch - still bathing in her blissful ignorance - has filed to reopen the case. Which brings us to Congress’ Fourth Amendment reminder we mentioned at the outset. Which would stop Madame Attorney General’s abuse here - and a whole lot of abuses elsewhere.
The (Senate) bill is called the International Communications Privacy Act (ICPA). It is, amongst other things, a DC unicorn - it is bipartisan. And bi-cameral - as members of the House have joined in its crafting.
And it will rein in an overreaching federal government that is forcing companies to violate the laws of other countries in which they operate - to give the U.S. government data to which it really shouldn’t have access.
Because the Fourth Amendment (and the rest of the Constitution) is limited to our territorial bounds. Else we’d better start invading a whole lot of places - in which all sorts of our Constitutional rights are being routinely violated in their jurisdictions.
Obviously, the Feds need a reminder of this fact. ICPA is that reminder. It is pathetic that you need a Congressional backstop to a Constitutional right - but we’re dealing with DC here, so we are oft dealing in things pathetic.
I am on the record as being nigh always against lame duck Congressional action. I don’t like officials We the People just said should no longer be voting on legislation - voting on legislation. But ICPA is a perfectly reasonable exception that proves this rule.
You can almost certainly pass ICPA just with people who will again be here in the next Congress. And ICPA has been languishing for more than two years - all the while (and going back years and years before) the Feds have been vastly exceeding their Constitutional bounds. And in the Microsoft case - are looking to do so yet again.
So the overreaches must be ended. ICPA ends them. So let’s pass ICPA.
This first appeared in Red State.