In 1928, the late Supreme Court Justice Louis D. Brandeis characterized the values underlying the Fourth Amendment to the U.S. Constitution as embracing the uniquely American right, and the right most valued by civilized persons, which he called the right to be let alone.
Today we call it the right to privacy. He also warned that the greatest dangers to privacy lurk in the slow and insidious encroachments upon it by zealots in the government.
Last week, the Biden administration’s director of National Intelligence caused me to recall Justice Brandeis’ warnings when she revealed that the 16 federal spying agencies that she nominally supervises have begun to do indirectly what the Constitution prohibits them from doing directly.
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Since they cannot obtain search warrants from a judge to surveil targets without first demonstrating under oath probable cause of crime by the persons whose surveillance they seek, these zealots in the government are purchasing private data about every American adult from the corporations and entities to which we all have unwittingly surrendered it.
This constitutes computer hacking — and it is as criminal as if federal agents had directly broken into the computers of those about whom and from whom they desire personal data.
Can the government do indirectly what the Constitution prohibits it from doing directly? In a word: NO.
Here is the backstory.
The language of the Fourth Amendment protects the privacy of all people by affirmatively declaring that the right to privacy in “persons, houses, papers, and effects” may only be violated by the government by the use of a search warrant, signed by a judge, based on probable cause of crime sworn to under oath, and which specifically describes the place to be searched or the persons or things to be seized.
The language of the amendment, and the language of statutes and court rules written to implement the procedures for seeking search warrants, makes no distinction on the nature of what the government seeks — evidence of crime or evidence of foreign interests.
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Stated differently, a fair and neutral reading of the amendment makes it clear that the probable cause and specificity requirements were intended not only to protect privacy from Big Brother but also to compel the government to focus on crimes after they occur, and not on predicting them.
The same two requirements — probable cause of crime and specifically stating what or whom is to be seized — also preclude the hated British colonial-era practice of using general warrants. General warrants did not require the government to show probable cause of crime, just governmental need and did not specify the place to be searched or the person or thing to be seized.
On the contrary, general warrants were issued so as to assist British agents, both law enforcement looking for tax evaders and intelligence agents looking for revolutionaries, by authorizing them to search wherever they pleased and seize whatever they found.
A typical example of all this surrounded the Stamp Act, enacted by Parliament in 1765 and repealed in 1766. This dreadful law required all colonists to purchase stamps; they were actually inked images of royal insignias transferred to a document for a fee.
The stamps were required to be on all documents in the home — papers, letters, books, pamphlets and posters — containing the written or printed word. How did the British government know if colonists complied with the Stamp Act? Answer: general warrants.
Thus, with a general warrant issued by a secret court in London enabling them to search wherever they wished and seize whatever they found, British agents entered colonial homes ostensibly looking for stamps but truly looking for revolutionary materials so as to anticipate who might rebel against the king.
It was against this backdrop that the Fourth Amendment was ratified. Any argument today that the amendment does not protect persons from all government, but only law enforcement, is historically disingenuous and intellectually dishonest.
When the Supreme Court last looked at all this in 2018 and ruled that the government needs search warrants to download or track mobile devices, it made no distinction between spies and cops; or cops acting like spies; or private persons doing dirty work for the government.
Even the late Justice Antonin Scalia, who famously argued for a narrow reading of the Fourth Amendment, agreed that it absolutely prohibits general warrants. Yet, that’s what the feds are effectively using when they spend tax dollars to purchase what the law prohibits them from acquiring.
They are indiscriminately seizing private data, without warrants, without probable cause, without identifying the data to be seized, without naming the persons they target and without even any articulable suspicion — the lowest bar needed in order to commence an investigation.
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What kind of authoritarian mindset — from those who have sworn to preserve, protect and defend the Constitution — thinks this is somehow lawful and constitutional?
Yet, we have seen this before. The feds famously used Big Tech to stifle social media favorable to Donald Trump and unfavorable to Joe Biden during the 2020 presidential campaign.
This constituted government suppressing speech because of its content, which is prohibited by the language, values and current judicial interpretations of the First Amendment.
If the feds can get away with trashing the First Amendment, and the Fourth Amendment is useless and toothless, what’s next? Will they hire corporations to administer cruel and unusual punishments, which the Constitution prohibits them from inflicting?
Will they pay thugs to steal our weapons, which the Constitution prohibits them from infringing? Will they use gangs to deny us life, liberty and property, which the Constitution requires them to guarantee to all persons?
The late Justice William O. Douglas wrote that the Constitution was written to keep the government off the people’s backs. When the government cuts holes in the Constitution, it will break our backs. Unless we break the government first.
COPYRIGHT 2023 ANDREW P. NAPOLITANO
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The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Free Press or DCNF.
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