"I believe we need a new approach," Obama said. “I am therefore ordering a transition that will end the Section 215 bulk metadata collection program as it currently exists, and establishes a mechanism that preserves the capabilities we need without the government holding this bulk metadata.”
This week, in response to President Obama's address on NSA data mining, the Republican National Committee raised the Don't Tread On Me, patriot banner by passing a resolution which states that “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution.”
The committee wants to reform the notorious Section 215 of the Patriot Act to provide that "blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court.”
It is almost enough to make one want to vote Libertarian. But to understand the spurious difference between the two "approaches," we have to return to the Golden Era of conservative jurisprudence in the 1920's and 1930's.
It is almost enough to make one want to vote Libertarian. But to understand the spurious difference between the two "approaches," we have to return to the Golden Era of conservative jurisprudence in the 1920's and 1930's.
To put the issue in historic perspective, it must first be recalled that in Barron v. Baltimore (1833) 32 U.S. 243 the high court took it for granted that the Bill of Rights did not apply to the States but only to the Federal Government. That assumption became the prevailing constitutional rule for the next 130 years.
With that assumption in mind, the starting point for any Fourth Amendment question is Weeks v. United States, 232 U.S. 364 U.S. 209, decided in 1914. It was there that the Court established the rule which excludes in a federal criminal prosecution evidence obtained by federal agents in violation of the defendant's Fourth Amendment rights. The foundation for that decision was set out in forthright words:
"The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects, against all unreasonable searches and seizures under the guise of law." (Weeks, at p. 383.)
Sounds great; but in in 1927, the high court promulgated a "mechanism" which served as a clanging gong to the sweet constitutional aria.
In Byars v. United States (1927) 273 U.S. 28, state law enforcement officers "invited" federal agents to ride along with them during a search they planned to conduct. Who knows, something of interest to the Feds might turn up. The Feds accepted the offer and tagged along while state cops conducted a patently illegal search. Lo and behold something of interest to the federal agents did turn up after all. Que sera, sera.
The Court raised high its hand and held that since the federal agents had not participated as private persons and since the search "in substance and effect was a joint operation of the local and federal officers," the evidence had to be excluded from use in federal courts because "the effect was the same as though the federal agents had engaged in the undertaking as one exclusively their own." (Id., at p. 33.) Launching into another aria, the Court intoned,
"[T]the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and 'it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon."(Id. at p. 34.)
Ah, but what the Court giveth with one hand, it taketh with the other,
"We do not question the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure. To hold the contrary would be to disregard the plain spirit and purpose of the constitutional prohibitions intended to secure the people against unauthorized official action. The Fourth Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies, and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right." (Byars, at pp. 34-35.)
Nay! Nay! The Imperatives of the Fourth Amendment are not to be impaired by subterfuges {BONG!} so long as the subterfuges aren't federal subterfuges.
This "Bong" became known as the Silver Platter Doctrine.
States acting entirely on their own, and careful to avoid inviting the Feds to the party, would knock down doors, rummage through houses and pummel defendants pillaging and coercing information which would then be trussed up like a pretty turkey and handed to the unknowing, unsuspecting, Feds.
At long and sorry last, the constitutional charade was put to an end by the liberal Warren Court in Elkins v. United States (1960) 364 U.S. 206 which held that.
All is well in Denmark once again.
Not so fast Banquo; the slaughter has only begun.
Following Elkins, the Court in Mapp v. Ohio (1961) finally held that the Fourth Amendment applied to state conduct as well. Illegal searches and seizures were now illegal throughout the land. But the court has never held that the Bill of Rights applied to private parties. On the contrary,
Mapp or no Mapp, the Court has not wavered for this rule,
It needs be said that the Court is not entirely shameless. It has extended the Fourth Amendment to searches conducted by private parties if it can be shown that they were acting as de facto agents of the government. But this protection is more equivocal than might first appear. The government is allowed to rely on private searches only so long as it, itself, does not go beyond the "boundaries" of the private search. The Court's precedents illustrate the elasticity of the rule.
In Walter v. United States (1980) 447 U.S. 649, an interstate shipment of sealed packages containing 8-millimeter homosexual porn films was mistakenly delivered by a private carrier to a third party. Employees of the third party opened the packages and therein found boxed reels of film on which "suggestive" drawings were depicted. On my gawd! The FBI was immediately called and forthwithly responded. Rushing toward the smutty contraband, the FBI ripped open the boxes of film and projected the movies onto the nears available wall. On appeal, the Court held that the viewing had constituted an unlawful search. (Id, at pp. 656-657.)
Alas, inside Walther's holding was one of those subtleties apt to be overlooked by the ordinary simpleton. The court only faulted the viewing. Otherwise, the FBI was entitled to rely on whatever was discovered by the private opening of the outer packages. And so, the dirty graphics on outside of the individual boxes of film had provided "facts" which the police could have used as probable cause to get a warrant, even if they could not, themselves, have obtained those facts without a warrant. (Id., at pp. 658-659.)
The matter got stated more plainly in United States v. Jacobsen (1984) 466 U.S. 109 were employees of a private freight company examined a damaged package and observed "a white powdery substance" seeping from plastic baggies. When a DEA agent arrived, he removed the plastic bags from their container, saw the white powder, opened the bags, removed a trace of the powder, subjected it to a field chemical test, and determined it was cocaine. Fine by us ruled the Court: "The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment." (Id., at p. 120.) It was an "invitation" the agents could hardly refuse. (Ibid.)
So much for "liberal" interpretation of the Fourth Amendment.
These holdings did not mean, that a private party could not become a de facto federal agent in just the same way as state police. Au contraire,
What then?
In Skinner, the railroad company had been deputized by the Federal Railroad Safety Act of 1970 to conduct urine tests on its employees either following an accident or in the interests of general safety. The Court did not question that the railroad company had been, to this extent, converted into an agent of the Federal Government. It held instead that the search was a "minimal intrusion" so minimal that it simply leaked through the floor boards of the Fourth Amendment. (Id., at 624.)
Ah well. Important enough to do but not important enough to notice. One might call this the Pee Stall Rule.
In cases where the item in question was not beneath notice, the Court has held that the items seized weren't the defendant's property in any case, and surely the Fourth Amendment does not extent to something that is not one's own "private papers and effects".
Thus, in Smith v. Maryland (1979) 442 U.S. 735 the Court held that dialed telephone numbers were "conveyed" to the telephone company and could no longer be deemed private even if the telephone company was bringing in the sheaves at government request.
The telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. (Id., at 73, 75.) The police did not get a warrant or court order before having the pen register installed. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. (Id., at p. 737.) The Court upheld the search,
We shall avert our eyes.
The history of this aspect of the Fourth Amendment could be summarized by saying that as its reach was extended holes were punched into its shield. A private party is not bound by the Fourth Amendment but, to the extent it might be, its searches are either beneath notice or are of things that have been "voluntarily" exposed to "public" [sic] view.
If all else fails, there is always National Security.
Katz v. United States (1967) 389 U.S. 347 is usually cited for its "landmark" decision the telephone taps constituted a seizure under the Fourth Amendment. But it contained a poisonous seed.
In footnote 23 the majority opinion noted that: "Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case." This dictum was joined in, either tacitly or explicitly, by five justices and thus constituted a part of the case's precedent.
Only justices Douglas and Brennan dissented from the dictum, stating that it was "a wholly unwarranted green light for the Executive Branch to resort to electronic eavesdropping without a warrant in cases which the Executive Branch itself labels "national security" matters." (Id., at p. at 361.) Justice Douglas felt obliged to explain that the Constitution did not exempt "treason" from the operation of the Fourth Amendment.
But the likes of Brennan and Douglas are not to be seen anywhere in the bog or on the horizons of today's Washington.
Thus, when the matter is examined in an historical context, it is becomes clear that Obama is simply dusting off the ol' Silver Platter.
Should there be any problem with the companies collecting the data, it isn't private information anyways. Or, to be more precise: it is their private information and not yours and so, whereas telecom companies might or might not object to its seizure, you, the ordinary schmuck in the land, have no interest or say in the matter.
And in all events, whatever "mechanism" problem might exist with respect to any "aspect" of the program, we must always bear the horrific image of 911 before us as we timorously and tremulously advance into the Great Dark which surrounds us.
But if Obama is simply promising to skin the same cat in a "changed and hopeful" way, the fluttering RNC manifesto is scantily better. It sounds great. It resonates with what patriotic and constitutionally minded Americans think, but the fine print is what the Supreme Court has said the Fourth Amendment means. As we have seen, the high court can blow a golden clarion as well as anyone; the devil lurks in the basso profundo. Nothing in the RNC manifesto calls for the abrogation of those holdings of the Court which have reduced the Fourth Amendment into a Silver Sive.
©Barfo, 2014.
"Evidence obtained by state officers during a search which, if conducted by federal officers, would have violated the defendant's immunity from unreasonable searches and seizures under the Fourth Amendment is inadmissible over the defendant's timely objection in a federal criminal trial." (Id., at p. 223.)
"The Fourth Amendment gives protection against unlawful searches and seizures, and, as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies." (Burdeau v. McDowell (1921) 256 U.S. 465, 475.)
"The Fourth Amendment is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" (United States v. Jacobsen (1984) 466 U.S. 109, 113.)
"Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, citations]" ( Skinner v. Railway Lab. Execs. Ass'n (1989) 489 U.S. 602, 614.)
"Since the pen register was installed on telephone company property at the telephone company's central offices, petitioner obviously cannot claim that his "property" was invaded. (Id., at p.741.)
"We doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. (Id., at p. 743.)
"This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." (Id., at p. 744.)
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