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. – The Bill of Rights
The War on Terror
President Bush expanded the power of the executive branch in the ever-increasing surveillance of American citizens. Shortly after the events of 9/11, the Bush administration announced a “War on Terrorism”, and within weeks, Americans saw many of their constitutional guarantees of freedom stripped away by the Patriot Act and Military Commissions Act with their plethora of legislative changes which significantly increased the surveillance and investigative powers of law enforcement agencies in the United States.
Attorney General Michael Mukasey began implementing new FBI guidelines that could begin national security and criminal investigations of racial and ethnic groups without any evidence of wrongdoing.
These new powers of the executive branch did not, however, provide for the system of checks and balances that traditionally safeguards civil liberties in the face of such legislation.
Many of the provisions of these tyranical Acts relating to electronic surveillance were actually proposed before September 11th, and were subject to much criticism and debate.
Download and read the Rebuilding America’s Defenses: Strategies, Forces And Resources For A New Century document for yourself. The Rebuilding America’s Defenses was written in September 2000, a year earlier than the 9/11 attack, by the neo-conservative think-tank Project for the New American Century (PNAC). Drawn up for Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, and others, the New World Order plan shows Bush’s cabinet intended to take military control of the Gulf region whether or not Saddam Hussein was in power.
Following 9/11, criticism and debate was squelched in favor of “protecting America.”
Lara Jakes Jordan of The Associated Press pointed out: “The new policy, law enforcement officials said, would let agents open preliminary terrorism investigations after mining public records and intelligence (including tips from informants) to build a profile of traits that, taken together, were deemed suspicious.”
There would be no evidence of criminal activity.
Attorney General Mukasey also has “proposed a new domestic-spying measure that would make it easier for state and local police to collect intelligence about Americans, share the sensitive data with federal agencies and retain it for at least 10 years” (The Washington Post, Aug. 16, 2008). State and local police agencies would not be hampered by Fourth Amendment’s requirements that they must search and seize traces of our activities and beliefs only upon “probable cause” that we are, or have been or plan to be, involved in criminal actions. They would need only a suspicion that we somehow are involved in terrorism or are providing “material support” to terrorism. “Material support” can mean sending a check to a charitable organization that, unknown to the giver, provides funds to a group later listed by the government as a terrorist group.
Perhaps one of the most blatant violations of the 4th Amendment is the use of the National Security Letter (NSL) power under 18 U.S.C. § 2709 as expanded by PATRIOT Section 505. These letters served on communications service providers like phone companies and ISPs allow the FBI to secretly demand data about ordinary American citizens’ private communications and Internet activity without any meaningful oversight or prior judicial review. Recipients of NSLs are subject to a gag order that forbids them from ever revealing the letters’ existence to their coworkers to their friends or even to their family members much less the public.
Early in 2002, the Department of Defense disclosed the most sweeping effort to monitor the activity of Americans since the 1960’s, a program called Total Information Awareness – allowing federal agencies to share information about American citizens and aliens that is currently stored in separate databases. But the Total Information Awareness program takes the principle of information-sharing to a new level. The T.I.A. program develops architectures for integrating existing databases into a ”virtual, centralized, grand database.” In addition to analyzing financial, educational, travel and medical records, as well as criminal and other governmental records, the T.I.A. program could include the development of technologies to create risk profiles for millions of visitors and American citizens in its quest for suspicious patterns of behavior.
“Terrorism is the best political weapon for nothing drives people harder than a fear of sudden death.” – Adolf Hitler
NSA (National Security Agency) Exposed
In 2013, NSA whistle-blower, Edward Snowden, revealed to the American public the NSA electronic surveillance program called Prism. This revelation came the day after the revelation that the United States Foreign Intelligence Surveillance Court had been requiring the telecommunications company Verizon to turn over to the NSA logs tracking all of its customers’ telephone calls on an ongoing daily basis.
What the PRISM program did was to allow the NSA to obtain virtually anything it wanted about hundreds of millions of people around the world from Internet companies.
Like cockroaches caught in a bright spotlight, government and corporate cronies scurried about defending this blatant violation of the 4th Amendment and massive intrusion into the private lives of all Americans in the name of national defense.
Prior to the disclosure of the NSA Prism program by The Washington Times and The Guardian, on March 12, 2013, the United States Director of National Intelligence, James Clapper, had lied to the United States Senate Select Committee on Intelligence saying that the NSA does “not wittingly” collect any type of data on millions or hundreds of millions of Americans.
Following the exposure of Prism, Clapper stated that “the NSA collects the phone data in broad swaths, because collecting it (in) a narrow fashion would make it harder to identify terrorism-related communications. The information collected lets the government, over time, make connections about terrorist activities.” On June 8, 2013, Clapper said “the surveillance activities published in The Guardian and The Washington Post are lawful and conducted under authorities widely known and discussed, and fully debated and authorized by Congress.”
Senator Rand Paul spoke at UC Berkeley on March 19, 2014 about his class-action lawsuit against the Obama administration and the NSA’s collection of telephone metadata.
It’s true, Congress is complicit in this erosion of the 4th Amendment. The controlling law here is the Foreign Intelligence Surveillance Act (FISA) introduced on May 18, 1977, by Senator Ted Kennedy and signed into law by President Carter in 1978. The Act was amended in 2001 by the USA PATRIOT Act, primarily to include terrorism on behalf of groups that are not specifically backed by a foreign government. It allows federal agents to write their own search warrants in violation of the Fourth Amendment and does away with the FISA-issued search warrant requirement, itself blatantly unconstitutional.
FISA is a near perfect scheme for the government. It allows the Foreign Intelligence Surveillance Court to rubber-stamp surveillance requests of supposed terrorists (the Justice Department claims there are over a million terrorists in America). The feds are not obliged to identify a target and they can conduct surveillance a week before making a FISA Court request. Surveillance can continue in the unlikely event that a request is denied and an appeal is set in motion.
Ron Paul explains why he is opposed to the “compromise” FISA wiretap bill (June 20, 2008):
I have strongly opposed every previous FISA overhaul attempt and I certainly would have voted against this one as well.
The main reason I oppose this latest version is that it still clearly violates the Fourth Amendment of the Constitution by allowing the federal government to engage in the bulk collection of American citizens’ communications without a search warrant. That US citizens can have their private communication intercepted by the government without a search warrant is anti-American, deeply disturbing, and completely unacceptable.
In addition to gutting the fourth amendment, this measure will deprive Americans who have had their rights violated by telecommunication companies involved in the Administration’s illegal wiretapping program the right to seek redress in the courts for the wrongs committed against them. Worse, this measure provides for retroactive immunity, whereby individuals or organizations that broke the law as it existed are granted immunity for prior illegal actions once the law has been changed. Ex post facto laws have long been considered anathema in free societies under rule of law. Our Founding Fathers recognized this, including in Article I section 9 of the Constitution that “No bill of attainder or ex post facto Law shall be passed.” How is this FISA bill not a variation of ex post facto? That alone should give pause to supporters of this measure.
Mr. Speaker, we should understand that decimating the protections that our Constitution provides us against the government is far more dangerous to the future of this country than whatever external threats may exist. We can protect this country without violating the Constitution and I urge my colleagues to reconsider their support for this measure.
Senator Dianne Feinstein (D-CA), chair of the Senate Intelligence Committee said, “These programs are within the law,” “Part of our obligation is keeping Americans safe,” “Human intelligence isn’t going to do it.” It would seem Senator Feinstein has not read the 4th Amendment. It says for example, “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.” Section 702 of the FISA law allows the NSA to merely submit once a year it’s guidelines for determining that year’s targets and then receives blanket authority to proceed. In 2013, for example, the NSA surveilled 89,138 people under the authority of only ONE FISA order – no probable cause, no support or affirmation, no specific description of the place, person, or things to be searched. Clearly a violation of the U.S. Constitution defended by Senator Feinstein, McCain, and others.
Corporate executives quickly denied any knowledge of the Prism program and denied providing the government data on the scale alleged. Their response is not unexpected since the Patriot Act forbids these companies of disclosing any information about government requests for data.
In 2013, the Supreme Court disemboweled the Fourth Amendment. In a 5-4 decision, the Court ruled that citizens cannot challenge government wiretapping laws, in particular the unconstitutional Foreign Intelligence Surveillance Act of 1978 and, more recently, the FISA Amendments Act of 2008.
In other documents revealed by Edward Snowden, another NSA program which began in 2009 called MYSTIC is a surveillance system capable of recording “100 percent” of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place. The program, reveled in the Washington Post article opens a door “into the past,” enabling users to “retrieve audio of interest that was not tasked at the time of the original call.” Analysts listen to only a fraction of 1 percent of the calls, but the absolute numbers are high. Each month, they send millions of voice clippings, or “cuts,” for processing and long-term storage.
Edward Snowden spoke to TED2014 about surveillance and Internet freedom.
Some Americans might feel comfortable because the MYSTIC surveillance program supposedly only targets “a foreign country’s telephone calls.” But, according to a story in TheGuardian, another tool used by the NSA called “Boundless Informant”, shows that the NSA was spying on Americans inside America as well. In fact, almost 3 billion data elements from inside the United States were captured by the NSA over a 30-day period ending in March 2013.
It isn’t just Internet and phone companies that are giving your personal information to the U.S. government. According to a report by Bloomberg, “four people familiar with the process” say that “makers of hardware and software, banks, Internet security providers, satellite telecommunications companies” and a whole host of other sources are handing over your personal data to federal agencies.
In 2016, a federal district court in Virginia ruled that a defendant has no “reasonable expectation of privacy” in regard to his or her personal computer, the modern equivalent of papers and effects.
“The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all,” writes Mark Rumold for the Electronic Frontier Foundation.
Napolitano: Has the Fourth Amendment become meaningless?
Also in 2016, the FBI was granted new authority to hack into phones and seizing computers remotely. The amendment [PDF] would update Rule 41 of the Federal Rules of Criminal Procedure, creating a sweeping expansion of law enforcement’s ability to engage in hacking and surveillance. The proposal grants a judge the ability to issue a warrant to remotely access, search, seize, or copy data when “the district where the media or information is located has been concealed through technological means” or when the media are on protected computers that have been “damaged without authorization and are located in five or more districts.” It would grant this authority to any judge in any district where activities related to the crime may have occurred.
“All of your private communications, all of your transactions, all of your associations, who you talk to, who you love, what you buy, what you read, all of these things can be seized and then held by the government and then searched later for any reason, hardly without any justification, without any reason, without any real oversight, without any real accountability for those who do wrong,” NSA whistleblower Edward Snowden told NBC’s Brian Williams in 2014.
It’s difficult to miss the similarities of what’s going on in America today to the activities in Nazi Germany in the 1930’s and ’40’s. All local police units in Nazi Germany had to draw up a list of people in their locality who might be suspected of being “Enemies of the State”. This list was given to the Gestapo – the official secret police of Nazi Germany and German-occupied Europe. The Gestapo had the authority to investigate cases of treason, espionage, sabotage and criminal attacks on the Nazi Party and Germany. The basic Gestapo law passed by the government in 1936 gave the Gestapo carte blanche to operate without judicial oversight.
The Smart Grid
Fueled by stimulus funding in the American Recovery and Reinvestment Act of 2009 (ARRA), electric utilities have accelerated their deployment of smart meters to millions of homes across the United States with help from the Department of Energy’s Smart Grid Investment Grant program. As the meters multiply, so do issues concerning the privacy and security of the data collected by the new technology.
“The use of smart meters presents the recurring conflict between law enforcement’s need to effectively investigate and combat crime and our desire for privacy while in our homes. With smart meters, police will have access to data that might be used to track residents’ daily lives and routines while in their homes, including their eating, sleeping, and showering habits, what appliances they use and when, and whether they prefer the television to the treadmill, among a host of other details.” [Taking the “Long View” on the Fourth Amendment: Stored Records and the Sanctity of the Home]
As the information in utility records becomes more detailed, the data held by the corporate entities collecting it will become more valuable to marketers, the government, and the police force. Recognizing this value, data analytic companies like Onzo have appeared promising to transform big utility data into real insight, that help companies in the energy space understand how each customer uses energy on a personal level. The continued conclusion that personal information contained in third party business records is outside the Fourth Amendment is poised to obliterate what the Supreme Court has identified as the “firm line [the Fourth Amendment draws] at the entrance to the house.” [Payton v. New York, 445 U.S. 573,590 (1980)]
Under the modern conception of the Fourth Amendment, the government may not intrude into an area in which a person has an actual expectation of privacy that society would consider reasonable. [Katz v. United States, 389 U.S. 347, 361 (1967)] In the case of smart meter data, the government presumably seeks records in the custody of third-party utilities on the energy use at a specific home. However, a significant body of cases has refused to recognize constitutionally protected privacy interests in information provided by customers to businesses as part of their commercial relationships. [Smith v. Maryland, 442 U.S. 735 (1979)]
This theory, the third-party doctrine, permits police access to the telephone numbers a person dials and to a person’s bank documents, free from Fourth Amendment constraints.
Smart meters can convey information about the activities that occur inside the home, an area singled out for specific textual protection in the Fourth Amendment and one deeply ingrained in Anglo-Saxon law. [Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765)] Even when the Court declared that “the Fourth Amendment protects people, not places,” [Katz v. United States, 389 U.S. 347, 351 (1967)] ostensibly shifting away from a property-based conception of the Fourth Amendment, it has still carved out special protections for the home. However, concomitant with the increased use of technology in our private lives is increased exposure of our private activities, including those conducted in the home. Commonly, we share more personal information, even as our concerns grow that more individuals, businesses, and others can glean more information about our personal lives as a matter of course. As with technology generally, does the fact that more of our lives are becoming “public” call for lesser or greater constitutional protection, and how does a “reasonable expectation”-based model continue to apply in a technologically intensive society? [Smart Meter Data: Privacy and Cybersecurity]
In no uncertain terms the Court has asserted that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Because of the significance of the home, access to smart meter data may prompt a doctrinal shift away from the third-party doctrine. Several home privacy cases shed light on this possible approach.
Another issue with third-party cases and smart meters is the nature of services involved and whether the customer actually assumes the risk or consents to this information being shared with others. In United States v.Miller, the customer “assumed the risk” that the bank would turn over the bank records to government authorities. That was a risk he took in doing business with the bank. With banking or telephone services, a customer has the option of transferring his business to another bank or another telephone carrier. To the contrary, because electric utilities are essentially monopolies, the customer cannot simply switch services. The only way to avoid the recordation of his electric usage is to terminate his utility service altogether, an impracticable option in modern society.
The War on Drugs
Democratic politicians like the War on Drugs just as it is — because they love the power it gives the federal government. Republican politicians want to accelerate the War on Drugs — by taking away more of your Constitutional liberties, by taking away more of your privacy, by turning America into more of a police state.
In yet another violation of the Fourth Amendment, The Family Smoking Prevention and Tobacco Control Act was passed by Congress giving sweeping new powers over tobacco to the FDA, and will require everyone engaged in manufacturing, preparing, compounding, or processing tobacco to register with the FDA and be subjected to FDA inspections. The FDA will now have the power of pre-market reviews of all new tobacco products, and will impose new user fees, meaning taxes, on manufacturers and importers of tobacco products. Curiously, this bill with more layers of bureaucracy and interference was supported by tobacco corporate giant, Phillip Morris. Other tobacco companies have taken to calling the bill the “Marlboro Monopoly Act of 2009.” One has to wonder how many smaller farmers will be forced out of business because of this bill.
Bill Clinton’s War on Drugs shredded much of what remained of the Bill of Rights. The biggest losers in the war were mothers, fathers, small-time dealers, medical-marijuana users and even children — not the “drug kingpins”.
Financially, police agencies involved in the forfeiture of property were winners. Following the passage of the 1984 Omnibus Crime Bill, police agencies were allowed to sell the assets they seized and keep the money. Tens of thousands of people had their property seized for the most trivial drug-law infractions. On the highways, police use “drug courier profiles” to stop and search motorists and confiscate their vehicles if any drugs are found. At airports, travelers’ cash is seized when it tests positive for traces of cocaine.
- In Denver, Colorado, 13 SWAT team members stormed the upstairs apartment of Ismael Mena looking for drugs. After breaking open the front door, the SWAT team found the door to Mena’s room latched, and kicked it in. Police say they found him armed with a .22 revolver, standing on his bed. Officers claim they screamed “Police!” and “Drop the gun!” repeatedly. Mena started to put the gun down, asking, “Policia?” But police say when they then moved to disarm him, he again raised the gun. Officers opened fire. Mena, a father of nine, was hit by eight bullets and killed instantly. No drugs were found. The next day, SWAT team officers learned they had raided the wrong residence-they should have gone next door.
- In Pennsylvania, a 21-year-old man with no prior offenses, was shot to death in his house by a squad of masked police dressed in ninja-style uniforms. They didn’t even knock before tossing a smoke grenade through a window, setting fire to the house. The unarmed John Hirko, suspected of dealing small amounts of marijuana and cocaine, was found face down on his stairway, shot in the back while fleeing the fire.
Imagine what will happen when “hate speech” laws are linked up with forfeiture statutes. People will be afraid to speak for fear of having their property seized.
Seizures of property due to a plethora of laws and regulations are commonplace today. Now if the government wants it, charges can be trumped and the property taken, often without trial.
Beware of what you eat
On December 1, 2008 the Ohio Department of Agriculture (ODA) and the Lorain County Health Department violated the constitutional rights of John and Jacqueline Stowers of LaGrange, Ohio. The Stowers operate an organic food cooperative called Manna Storehouse. ODA and Lorain County Health Department agents forcefully raided their home and unlawfully seized the family’s personal food supply, cell phones and personal computers. The Stowers, parents of eight children (including one son serving in Iraq), have been accused of violating retail food establishment licensure laws.
“The use of these police state tactics on a peaceful family is simply unacceptable,” Buckeye Institute President David Hansen said. “Officers rushed into the Stowers’ home with guns drawn and held the family – including ten young children – captive for six hours.”
The Buckeye Institute argues the right to buy food directly from local farmers; distribute locally-grown food to neighbors; and pool resources to purchase food in bulk are rights that do not require a license. In addition, the right of peaceful citizens to be free from paramilitary police raids, searches and seizures is guaranteed under the Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution.