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All Da King's Men

Obama Administration Resists Fourth Amendment

By Da King Published: May 17, 2011

I have more to say about the Fourth Amendment, so I thought I'd put it in a new post.

The 1986 Electronic Communications Privacy Act (ECPA) states that any e-mail left in the cloud may be searched by the government without a warrant if it is older than 180 days. Cloud e-mail is e-mail stored on a third party server, as opposed to being stored on your own computer hard drive. The government does need a warrant to search your personal computer hard drive (in theory. I'll come back to this later).

The problem with this law is, since the advent of the internet, consumers increasingly store their e-mail on third party servers instead of their own hard drives, and as most of you know, when you delete an e-mail on a computer, it isn't really deleted. It remains on the server. This means the government has been able to access huge amounts of our personal computer communications for a very long time without any probable cause or warrant. There is no Fourth Amendment protection of this data.

A coalition of internet service providers and others, known as Digital Due Process, is lobbying the government to correct the situation so cloud e-mail and home-stored e-mail are both protected under the Fourth Amendment. Congress held a recent hearing on the matter.

But the Obama Administration says it don't want no stinking Fourth Amendment privacy protections. Here's the congressional testimony of Associate Deputy Attorney General James A. Baker:

Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means — a probable cause warrant — for compelling disclosure of all stored content. For example, in order to obtain a search warrant for a particular e-mail account, law enforcement has to establish probable cause to believe that evidence will be found in that particular account. In some cases, this link can be hard to establish. In one recent case, for example, law enforcement officers knew that a child exploitation subject had used one account to send and receive child pornography, and officers discovered that he had another email account, but they lacked evidence about his use of the second account.

The argument is always the same. The public is guaranteed a Constitutional right to privacy, but the government says that right to privacy interferes with it's ability to catch criminals. The government's position has caught on big in the post-9/11 atmosphere, when the public was worried about more terrorist attacks, but the government has basically always held to the same belief. For instance, you might think NSA warrantless wiretapping of phone calls began with President Bush after 9/11, but you'd be wrong. The first major case of warrantless wiretapping I could find was the 1928 Olmstead v. United States case, and in that case the Supreme Court ruled warrantless wiretapping was NOT a violation of the Fourth Amendment. The decision was later overturned in a 1967 case.

These cases serve as a reminder to us of how important it is to have an independent, Constitution-minded judiciary, because it is the judiciary that serves as a bulwark against the tyranny of our own government. When the Supreme Court struck down several of President Franklin D. Roosevelt's laws as unconstitutional in the 1930's, FDR responded by to attempting pack the court with crones who would ignore the Constitution and serve as his own personal rubber stamp. Our Constitution would not long survive if the judiciary became so compromised.

It is the judiciary that will have to stand up to the Obama Administration as well. In December, a federal appeals court ruled that e-mail does come under privacy protections of the Fourth Amendment:

The government must obtain a court warrant to require internet service providers to turn over stored e-mail to the authorities, a federal appeals court ruled Tuesday.

The decision by the 6th U.S. Circuit Court of Appeals was the first time an appellate court said Americans had that Fourth Amendment protection.

“The government may not compel a commercial ISP to turn over the contents of a subscriber’s e-mails without first obtaining a warrant based on probable cause”, the appeals court ruled. The decision — one stop short of the Supreme Court — covers Kentucky, Michigan, Ohio and Tennessee.

Score one for the courts. This isn't over yet, but so far, so good.

Liberals and others were very upset with President Bush for his post-9/11 warrantless wiretapping (which was the one and only time I actually thought the government should be granted some leeway to prevent more terrorist attacks), but as I said before, that activity didn't begin with Bush. President Clinton did it before Bush did, and I don't recall the same outrage (or any outrage) being directed at Clinton. From Wikipedia:

On July 14, 1994 President Clinton's Deputy Attorney General and later 9/11 Commission member Jamie Gorelick testified to the Senate Intelligence Committee that “The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes…and that the president may, as has been done, delegate this authority to the Attorney General.” This “inherent authority” was used to search the home of CIA spy Aldrich Ames without a warrant. "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."[7]

Perhaps liberals look at things in a different light when a President has a 'D'' next to his name ??? I'm just asking, though I already know the answer

Lastly, I can't let any discussion of privacy go by without bringing up Project Echelon. It is a government signals intelligence network that can scoop up satellite communications, e-mail, telephone calls, etc. Nobody seems to know exactly what it is being used for, which is why I said before that your e-mail is private "in theory". In reality, yeah, Big Brother is probably watching, and listening too. If I were you, I would always assume so.



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