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The Fourth Amendment takes center stage during a tough week

June 7, 2013 by Scott Bomboy


One of the bedrocks of American society, the Fourth Amendment to the Constitution, is having a tough time to start June. But at least the debate over its very existence is getting a lot of publicity.

bill of rights640
The Bill of Rights

For you Fourth Amendment novices at home, the amendment 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, and particularly describing the place to be searched, and the persons or things to be seized.

To start the week, the Supreme Court ruled in a 5-4 decision that police can take your DNA in a criminal case, without a warrant from a judge, if you are arrested. That DNA goes into a national database, even if you aren’t tried and convicted under the circumstances you were arrested under.

Justice Anthony Kennedy wrote the majority opinion and said that the “quick and painless” DNA swabbing procedure was indeed a permissible search under the Fourth Amendment, and it was more like police matching you up to a mug shot or fingerprint.

The colorful conservative stalwart, Justice Antonin Scalia, was not amused.

“I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection,” he said in an epic dissenting opinion. (He also used the word “panopticon,” which caused a sensation in itself.) Agreeing with Scalia, in an unusual event, were three liberal justices on the bench.

The debate among academics and Fourth Amendment lovers was already at a fever pitch as the week continued—and two Fourth Amendment bombshells exploded on Wednesday and Thursday night.

First, blogger Glenn Greenwald at The Guardian leaked a highly classified document—a secret court order—that showed that the National Security Agency has access to basic phone data for all Verizon customers.

The NSA obtained the data with the permission of a secret court in Washington called the Foreign Intelligence Surveillance Court, or FISC, and it didn’t need to prove probable cause before seizing the phone records of millions of Americans.

That didn’t sit well with Fourth Amendment fans, the press, and a lot of politicians.

Link: NCC president Jeffrey Rosen asks for transparency

The Obama administration responded with a statement, saying that the data was needed for national security purposes and investigators didn’t listen to phone conversations like they would in a wiretap situation.

The bigger bombshell hit Thursday night, when The Washington Post and Greenwald, in separate articles, revealed a huge secret government program called Prism, in which major Internet companies allowed the NSA to access user information directly—again with the approval of the secret FISC court.

Link: Go inside the secret court

The user information purportedly includes email, text messages, video chats, and personal data.

Two statements from the Obama administration followed on Thursday night, from the Director of National Intelligence, James Clapper. One statement said the leaked documents posted by the Guardian and Post had “numerous inaccuracies” and that provisions of the Foreign Intelligence Surveillance Act allowed such actions pertaining to non-U.S. persons living outside of the United States.

A second statement from Clapper contained some information he said was now declassified about how the NSA obtains “business records” like phone-call information.

“There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties,” he said.

“All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization,” Clapper added.

Reasonable suspicion is a legal standard that requires a lower burden of proof than probable cause as a justification for a search.

On Friday, opinion writers at prominent media outlets around the country were defending the Fourth Amendment, and condemning the government’s apparently huge, and albeit probably legal, domestic spying operation.

“If the collection of phone-call data is so innocuous and routine, why are the surveillance court’s orders stamped top secret? Why can’t we know more about this snooping?” asked Eugene Robinson in The Washington Post. “We have to ask these questions now, while we still remember what privacy is. Or was.”

The folks at Fox News were high-fiving their rivals at The New York Times, after the liberal-leaning newspaper took the Obama administration to task in a searing editorial.

“The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it,” said the Times’ editorial board.

“This was a big change for a paper that has both endorsed the president and supported him throughout his presidency,” said Dan Gainor on “The Times sounded practically Tea Partian in its critique.”

Don’t look for the controversy to slow down, for two reasons.

First, The Guardian’s Greenwald, a former attorney-turned-blogger who reportedly now lives in Brazil, says more revelations are coming—and he was expecting some kind of conflict with U.S. legal authorities.

“I'm going to go ahead and take the Constitution at its word that we're guaranteed the right of a free press,” he added.

Second, Clapper was pretty clear in his statements that his agency saw the leaks in the Guardian and Washington Post as a national security matter.

“The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation,” Clapper said.

If the government pursues charges against the people who leaked the documents to the media outlets, or even against the reporters, it will set up another clash involving the First Amendment as well as the Fourth Amendment.

The government was able to get phone records of Fox News reporter James Rosen after a warrant was approved by a District of Columbia judge, in which Rosen was called a “co-conspirator.” That decision outraged First Amendment supporters.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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