How well do we Americans understand our rights under the Constitution? Specifically, how well do we understand the Fourth Amendment? I have a sneaky suspicion that the answer will be, not very well at all. As we watch the seemingly benign debates over the NSA’s continuance of domestic monitoring under the premise of national security, I find myself asking, “Do we really understand what is at stake here?” I decided to find out for myself, without the help of NBC, MSNBC, CNN, FOX NEWS, or CBS. I decided to READ, again, the Fourth Amendment, and its subsequent case laws, to better understand and share. First, though, I needed to do a little test…
Ask most Americans “What is the Fourth Amendment?” and I am willing to bet my next paycheck that over 70% of them will say, “I don’t know.” Ask most American teenagers a simple question: “What is the Fourth Amendment” and I’m willing to place my life savings on the same statistics (or worse). Ask those same people which Founding Father provided the basis for the Fourth Amendment, and that question is typically answered with eyes blankly blinking to the rhythm of the crickets’ calls. The reality is that of almost every single person out of the 30 that I asked, they had to “Google” it, a few had a vague idea of what the Fourth Amendment protects, and only 2 knew the history of the Fourth Amendment at all. If that’s not scary, I don’t know what is.
History of the Fourth Amendment: Why John Adams Wanted to Protect the New World Colonies
In a nutshell, the Fourth Amendment was drafted in response to British Colonial experiences as it pertained to the issuance of general warrants or Writs of Assistance. These Writs (warrants) granted unlimited search and seizure power to peace officers and residents for the life of the monarch that issued it, and were often arbitrarily imposed upon the citizen for whom it was issued. Worse yet, those same Writs permitted community member involvement in the search and seizure, promoting a special type of distrust amongst neighbors. The invasive, often unnecessary searches by the petty officers and tax collectors of the King were an abusive method of terrorizing the communities into submission.
The New World colonists recognized a need to provide specificity in the issuance of search and seizure warrants, and Founding Father and second President of the United States, John Adams penned a version by which the Fourth Amendment is based, in his 1780 draft of the State of Massachusetts Constitution he stated, “…a right to be secure from all unreasonable searches and seizures of his person, his house, his papers and all his possessions.”
In 1791, the Fourth Amendment was ratified, and states:
“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.”
See a similarity? There. Now we can all say that John Adams essentially penned the Fourth Amendment, and it was ratified in 1791.
We can further conclude that John Adams based his drafting of this Amendment on British Colonial experiences. Case law suggests, in Stanford v. Texas, 379 U.S. 476, 482 (1965) (“[T]he Fourth Amendment was most immediately the product of contemporary revulsion against a regime of writs of assistance . . . .”); Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, in 84 THE JOHNS HOPKINS UNIVERSITY STUDIES IN HISTORICAL AND POLITICAL SCIENCE 1, 19 (1966) (explaining that the Fourth Amendment was “the one procedural safeguard in the Constitution that grew directly out of the events which immediately preceded the revolutionary struggle with England”).
What Does the Fourth Amendment Actually Protect?
The Fourth Amendment protects citizens against the unlawful, arbitrary search, seizure and implied trespass of private, personal property (ALL types) without probable cause and a specific, purposeful warrant issued by the judicial system. That means that you have the right to privacy. That is, you, as a taxpayer, should be able to have a reasonable expectation of privacy.
Ever Heard of the “Trespass Doctrine”?
Probably not. They don’t teach that in high school, or in most undergraduate programs, for that matter.
In Katz v. United States, 389 US 347, 352-53 (1967), the final decision by the Court was that the “warrantless wiretapping of a public pay phone violates the unreasonable search and seizure protections of the Fourth Amendment.”
A two-pronged test was then suggested by Justice John Marshall Harlan, “My understanding of the rule that has emerged from prior judicial decisions is that there is a twofold requirement: first that a person have exhibited an actual (subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize as ‘reasonable.’”
The Patriot Act Section 215 vs. the Fourth Amendment: Is Warrant-less Surveillance of American Citizens “Reasonable”?
According to the American Civil Liberties Union (ACLU), the Patriot Act Section 215:
- “allows the FBI to order any person or entity to turn over “any tangible things,” so long as the FBI “specif[ies]” that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.”
- Section 215 vastly expands the FBI’s power to spy on ordinary people living in the United States, including United States citizens and permanent residents.
- The FBI need not show probable cause, nor even reasonable grounds to believe, that the person whose records it seeks is engaged in criminal activity.
- The FBI need not have any suspicion that the subject of the investigation is a foreign power or agent of a foreign power.
- The FBI can investigate United States persons based in part on their exercise of First Amendment rights, and it can investigate non-United States persons based solely on their exercise of First Amendment rights.
- For example, the FBI could spy on a person because they don’t like the books she reads, or because they don’t like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy.
- Those served with Section 215 orders are prohibited from disclosing the fact to anyone else. Those who are the subjects of the surveillance are never notified that their privacy has been compromised.
- If the government had been keeping track of what books a person had been reading, or what web sites she had been visiting, the person would never know.”
Are Americans’ Rights Under the Fourth Amendment Being Violated Today?
With a resounding YES, it is clear that Americans’ rights under the Fourth Amendment are being violated. The Patriot Act Section 215 is a bullying measure by the Federal Government to impose unlimited search and seizure under the guise of National Security. The FISA Amendments Act extension voted into acceptance in 2012, “permits the intelligence community to intercept the communications of individuals without a warrant, provided the interceptions are targeted at suspected foreign state or terrorist agents located outside the United States” and according to Rep. Zoe Lofgren (D-Calif.), the reauthorization act “does not make clear that the government must obtain a warrant prior to searching for information acquired incidentally on a U.S. person in a large pool of data that the government has already lawfully obtained.”
As we’ve learned through the Edward Snowden debacle, the NSA, the FBI, YOUR GOVERNMENT has granted themselves unlimited authority to search, intercept, and collect your data, your records, your calls. Whether you have something to hide or not – this is a violation of your Fourth Amendment Rights, and an absolute violation of your Civil Rights.
Americans, already paranoid, are now under (potentially) constant surveillance by law enforcement for being individuals that may, or may not, agree with the management of this country by the federal government.
Sen. Paul Rand (R-KY) presented the “Fourth Amendment Preservation and Protection Act of 2013” in May of this year, to the Senate. It has been referred to the Committee on the Judiciary, and there is no further news on the Act since May 2013, which is disturbing.
The language is as follows:
“Fourth Amendment Preservation and Protection Act of 2013 – Prohibits the federal government or a state or local government from obtaining or seeking to obtain information relating to an individual or group of individuals held by a third party in a system of records, except as authorized by this Act. Deems information obtained otherwise to be inadmissible in a criminal prosecution in a court of law.
Permits the government to obtain, and a court to admit, information relating to an individual held by a third party in a system of records if: (1) the individual whose name or identification information the government is using to access the information provides express and informed consent to the search; or (2) the government obtains a warrant, upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”
“Big Brother is Watching You” – And You’re Paying Him a Hefty Price
The Amash-Conyers Amendment was proposed in order to defund the NSA’s phone meta-data collection provisions, however failed to pass the House earlier this week. Part of a multi-billion dollar program, the passing of Amash would have cut funding and payment to a large number of Secret Squirrel contracting companies.
Our tax dollars are being used against us. Our so-called politicians and their corporate cohorts have deemed our Fourth Amendment irrelevant, and our personal rights to privacy moot.
Contact your local, state and federal representatives and let them know: WE DO NOT APPROVE THE USE OF OUR TAX DOLLARS FOR UNLAWFUL SEARCH AND SEIZURE OF OUR RECORDS, CALLS, OR PERSONAL PROPERTY, NOR DO WE APPROVE OF THIS TYPE OF PERSONAL PRIVACY INVASION.