This Week's Senate Scandal: Scorn for the 4th Amendment

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Crucial attempts to rein in government spying failed Thursday, guaranteeing that the privacy of more innocent Americans will be violated. 

dianne feinstein full.jpg
Senator Dianne Feinstein, a California Democrat, misled with her rhetoric during floor debates. / Reuters

I haven't passed the bar, but I know a little bit about the 4th Amendment. Have you read it lately? "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," it states in plain English, "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."

That's all of it.

The landline in your house? The government needs a warrant to tap it. The letters in your mailbox? The government needs a warrant to read 'em. It's like the Framers said: probable cause is required.

Yet a text or an email, even one sent from your bed, is treated differently -- it's afforded much less protection from government snoops, even though we're increasingly going all digital in our communication.

Why?

Senator Rand Paul raised that question Thursday on the Senate floor. "We became lazy and haphazard in our vigilance," he told his colleagues during a debate about government surveillance. "We allowed Congress and the courts to diminish our Fourth Amendment protection, particularly when our papers were held by third parties. I think most Americans would be shocked to know that the Fourth Amendment does not protect your records if they're banking, Internet or Visa records. A warrant is required to read your snail mail and to tap your phone, but no warrant is required to look at your email, text or your Internet searches. They can be read without a warrant. Why is a phone call more deserving of privacy protection than an email?"

The subject came up because the legislators were debating whether or not to extend a law that gives the federal government surveillance powers that some say are necessary to fight terrorism, especially by intercepting foreign communication that originates outside the United States. "This sparsely-attended holiday session is likely to be the only full floor debate on sweeping surveillance legislation that has been in force for four years already (during which we know it has already been used unconstitutionally), and is all but certain to be renewed for another five," Julian Sanchez, Cato's expert on the subject, wrote before the debate began. "That's especially disturbing given that, when the House debated the law back in September, its strongest supporters revealed themselves to be profoundly confused about what the law does, and just how much warrantless spying on the communications of American citizens it permits."

So why specifically is the law objectionable? Just ignore the acronyms and you'll understand just fine:

The FAA authorizes large scale surveillance of Americans' communications. Supporters of the act suggested again and again that this can't be true, because the law requires NSA surveillance programs to have a foreign 'target.' But this is based on a misunderstanding of what 'target' means in FISA. As former Deputy Attorney General David Kris explains at length in his book on the law, the 'target' of a surveillance program under FAA is typically just the foreign group--such as Al Qaeda or Wikileaks--that the government is seeking information about. The FISA court approves general procedures for surveillance, but it's NSA agents who decide which particular phone lines and e-mail accounts will be wiretapped, and there is no explicit requirement that these particular phones and e-mail addresses be foreign--only the program's overall target.

And of course, there is something historically very strange about imagining that surveillance can only violate the rights of named targets: The Founders abhorred 'general warrants,' which they passed the Fourth Amendment to abolish, precisely because these warrants authorized searches of people and homes who were not specifically named targets, exactly as the FAA does.  

Making the case for continuing to empower the Obama Administration and its spying, the Heritage Foundation's Jessica Zuckerman mentions neither the past abuses associated with the legislation nor the ways the private communication of innocent Americans are made vulnerable by it.  

Sanchez, a policy analyst at The Cato Institute, reported on several efforts to amend the legislation to better protect innocent Americans from government spying on their communications, including what he characterized as several "very mild, common sense tweaks," which I'll detail shortly, and a proposal by Senator Paul that he described as "genuinely radical."

Sen. Paul's proposal, as described on his Web site, "extends Fourth Amendment guarantees to electronic communications and requires specific warrants" if police want to search or seize them. What does it say about how far afield we are from the spirit of the 4th Amendment that the mere attempt to reaffirm it for the electronic age would require radical change?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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