At the end of this year, Congress will vote on whether the government must adhere to the Constitution. Specifically, provisions of the anti-Fourth Amendment USA PATRIOT Act will reach their sunset on 15 December – the 228th anniversary of the ratification of the Bill of Rights, appropriately – if reauthorization legislation is not passed into law. Among the sections set to expire is, section 215, the blatantly unconstitutional provision allowing the government to collect Americans’ telephone records, bank records, library records, and more without probable cause. When members of Congress vote on whether to reauthorize this provision, they would be wise to remember that the American Revolution was fought in part because of government intrusion on individual privacy.
In colonial America, writs of assistance were general search warrants that enabled British customs officials to search any premises that they suspected might contain smuggled goods and to command other officials or private citizens to assist in carrying out these searches. Officials did not have to present evidence of their suspicion to a court, nor did they have to specify the place to be searched or the goods to be seized. In 1761, a Boston lawyer by the name of James Otis argued before the Superior Court of Massachusetts that these general warrants violated the colonists’ natural right to privacy from the government. “Now one of the most essential branches of English liberty is the freedom to one’s house,” asserted Otis. “This writ, if it is declared to be legal, would totally annihilate that privilege.”
Although the court upheld the legality of the writs of assistance, this government infringement of privacy became a major grievance among the colonists, contributing to the start of the Revolution and the decision to declare independence from England. The founding father John Adams described Otis’ impassioned argument before the Superior Court as “the spark in which originated the American Revolution.” Years later, when the Founding Fathers drafted the United States Constitution, they included the Fourth Amendment to protect specifically against the sort of unreasonable searches suffered by the colonists under the writs of assistance.
In light of this history, it is egregious that the paradoxically titled USA PATRIOT Act functions as little more than a modern-day writ of assistance. Simply replace the colonial crackdown on smuggling with today’s overzealous response to the perceived threat of terrorism. The similarities between the colonial writs and the USA PATRIOT Act are striking. Section 215 of this most unpatriotic Act authorizes the government to command the assistance of third parties – including telephone companies, Internet providers, and financial institutions – in handing over Americans’ “books, records, papers, documents” and other tangible things. Just as colonial customs officials needed only claim suspicion of contraband to ransack a house, the government need only assert that the records it seeks are relevant to a terrorism investigation, a standard interpreted so broadly that the cell phone records of every American were deemed “relevant.”
Unfortunately, far too many on both the left and the right justify this appalling violation of our constitutional rights with a “nothing to hide, nothing to fear” mentality. This complacency fails to heed James Madison’s warning, eloquently articulated in Federalist Paper No. 51, that controls on government power are necessary because people, including those in government, are not angels.
Arguing against the writs of assistance, Otis noted, “Custom-house officials may enter our houses when they please… Whether they break through malice or revenge, no court can inquire.” This concern was ultimately remedied by the Fourth Amendment’s requirement that the government present to a judge probable cause of evidence of a crime before conducting a search. Because section 215 circumvents this probable cause requirement, it lends itself to being abused.
Concerns of abuse are not merely hypothetical. A recently declassified ruling by the Foreign Intelligence Surveillance Court reveals that the Federal Bureau of Investigation conducted improper searches of databases relating to tens of thousands of e-mail addresses and phone numbers – including those belonging to Americans – in 2017 and 2018.
Those on both sides of the political aisle profess concern for civil liberties, but their votes on section 215 will speak volumes louder than their words. Are the same Republicans who were incensed over allegations of improper surveillance against the Trump campaign so scared of statistically infinitesimal threats that they will champion reauthorization of the surveillance laws most ripe for abuse? Are Democrats so willing to sacrifice constitutional liberties for perceived security that they will grant expansive domestic surveillance powers to a president they deem “corrupt” and “lawless”?
Our forefathers quite literally fought a revolution over this! Those who support the reauthorization of this atrociously unconstitutional statute argue with specious evidence that it is necessary to protect national security. Sadly, they fail to recognize that if we violate the Constitution in the name of protecting the country, we will relinquish everything that is worth protecting in the first place.
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