Restore the Fourth – Andrew P. Napolitano

If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.” Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to “the Fourth” is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the PATRIOT Act. The PATRIOT Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data.

Bulk collection of data – the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements and credit card bills – is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T and Google.

What’s wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

The Fourth Amendment requires evidence – called probable cause – about a particular person, place or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must “particularly descr(ibe) the place to be searched, and the persons or things to be seized.” The Fourth Amendment protects all persons’ bodies, houses, papers and effects.

Yet the PATRIOT Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.

Read the rest via Restore the Fourth by Andrew P. Napolitano — Antiwar.com.

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