4th Amendment

4th_Amendment_NSA

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.

Proposed 1789, ratified 1791 as a bulk ratification of the first ten amendments, the original ten amendments, the Bill of Rights known as the peoples rights.

There are two clause:

Clause 1: Unreasonable searches and seizures (The Reasonableness Clause)

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4th_Amendment_warrantClause 2: Warrant (Warrant Clause)

While James Madison is sighted as the author of the first draft, it is John Adams version, and his arguments for, that has resulted in its final wording.

The 4th amendment was applied to the states in a ruling by the Court in Mapp v. Ohio (1961). Although the 14th amendment has been used by the Court to assert that the Bill of Rights applied to the states.

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The 4th amendment is enforced by the exclusionary rule, established by Weeks v. United States (1914).

To understand the 4th amendment and finding of its way into the Bill of Rights the following are two sources: Writs of Assistance Case and The Framers’ Intent: John Adams, His Era, and the Fourth Amendment.

As Thomas K. Clancy wrote in The Framers’ Intent, “The amendment contains two grammatically independent clauses joined by the conjunction “and.” The first clause is called the Reasonableness Clause and merely specifies, without elaboration, that all searches and seizures must be reasonable. The second clause, commonly called the Warrant Clause, requires that warrants be under oath or affirmation, that the places to be searched and the persons and things to be seized must be particularly described, and that the intrusion be supported by probable cause.”

The 1st, 5th, 6th and 8th Amendment play a role along with the 4th. Article I, Section 9, Clause 2 of the Constitution can as well. Court cases up to the ying yang have either conferred broad authority to government or at times playing a role of restricting..

Perhaps in recent times the Patriot Act has superseded in nefarious ways how government has extreme lead way in seizing data records on individuals. Section 215, 501 and 502 are relevant in this argument.

The FISA Amendments Act while targeted specifically foreign persons it has been disclosed that the intelligence community has taken a very broad interpretation, collecting data not just on foreign persons of interests but spying on American citizens traveling abroad. And now we know in no small way through the Snowden revelations that all of us are caught in their net of surveillance.

The Guardian is quoted saying “The American Civil Liberties Union called for the NSA’s program, first revealed by the Guardian in June, to be ended, arguing that it 4th_Amendment_obamabreached the first and fourth amendments as well as exceeding the authority Congress gave to the government through the Patriot Act.” The ACLU said, “This kind of dragnet surveillance is precisely what the fourth amendment was meant to prohibit,” ACLU deputy legal director Jameel Jaffer, said before the [Congressional] hearing. “The constitution does not permit the NSA to place hundreds of millions of innocent people under permanent surveillance because of the possibility that information about some tiny subset of them will become useful to an investigation in the future.”

As reported in CNET “The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ emails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.” Another jewel in this CNET article is “The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena — a piece of paper signed by a prosecutor, not a judge — is sufficient to obtain nearly “all records from an ISP.” And the U.S. attorney in Houston recently obtained the “contents of stored communications” from an unnamed Internet service provider without securing a warrant signed by a judge first.

An FBI investigation manual updated last year, obtained by the ACLU, says it’s possible to warrantlessly obtain Americans’ e-mail “without running afoul” of the Fourth Amendment.”

Does DOJ disappear the 4th amendment by “it is classified”?. EFF wrote “In recent years, the Fourth Amendment has been almost entirely disappeared without a trace.” EFF goes on to say “Technically, the government previously argued that revealing the existence and text of the Fourth Amendment would cause exceptionally grave harm to the United States — that’s what the Top Secret classification it withheld this material under means EFF also wrote,. “I wouldn’t be surprised if the government had disappeared it as a conscious policy decision. So perhaps they really do maintain that the Fourth Amendment must now be hidden pursuant to the Executive Order [Executive Order 13526, signed by Barack Obama] governing classified information.”

They by use of “its classified” have made the Exclusionary Rule meaningless. The Exclusionary Rule “prevents the government from using most evidence gathered in violation of the United States Constitution. It applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment. The Exclusionary Rule is a court-created remedy and deterrent, not an independent constitutional right.

The Legal Foundation informed us “The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.”

The Fourth Amendment contains an explicit “right of the people to be secure in their persons” that is also strongly indicative of a constitutional right to privacy. Privacy has been interpreted by the DOJ as presumption of privacy is not a guarantee.”

The Affordable Care Act is another massive data collection tool.

While Congress and government often cite the intention of the 4th amendment in all consideration of the surveillance activities clearly, they could give a rat’s patootie. Citing the 4th amendment is just white wash. There is little oversight by Congress unless a monumental revelation hits the fan. Congressman Sensenbrenner [co-authored America’s Patriot Act] stated , “[Party leaders] are going to have to review what kind of people they put on the intelligence committee. Oversight is as good as the desire of the chairman to do it.”

Expect ‘fig leaf’ approaches to be taken by Congress. This will only serve to attempt to silence the debates. It is faint hope that the charged climate around bulk data collection will be put to rest. This ‘fig leaf’ approach will not stop the NSA and it does nothing to stop the inter-agencies use of bulk data collection be it that of the ACA, or by other means, data being used in authoritarian methods.

The National Criminal Justice Reference Service, Office of Justice Programs writes “The interpretation and enforcement of the Fourth Amendment’s provisions regarding warrants and the reasonableness of a search and seizure must rest on contemporary analyses and values, because neither the language, the structure, nor the history of the Fourth Amendment makes clear how it should be interpreted in today’s legal context.”

This of course allows broad lead way for the Justice Department, Congress, the Courts to bolster 21st century security weighed against ‘individual’ and ‘collective’ personal liberty. In fact what the Office of Justice is really stating is that the 4th amendment does not have “any” relevance in the 21st century.

Assault on the 4th amendment means that the clauses of the 1st are being abridged as well. Free speech, freedom of the press and the right to assemble are under attack with the scraping of data. The various agencies of the executive branch can, and it seems do, use the spoken words in print against people. A free press is only a subject of history. The government has the journalist shaking in their shoes.

The fact is the American people (and now those in other nations) have no confidence that the U.S. government is being truthful. Most of us believe the U.S. government is operating at the bottom of the barrel. How could we think otherwise.

The number of briefs filed that relate to the 4th, 1st amendments are staggering. Those who fight for liberties using the courts are overwhelmed.

Congress could, if they had the will, put an end to constitutional infringement not only of the 4th others as well but they have chosen not to. Congress has joined the executive at the bottom of the barrel. What ever legislation Congress ‘may’ enact they should not count on any agency of the executive for input nor should they use governments constitutional lawyers. The lawyers that should be consulted are those who end up fighting their laws in Court.

More than 500 authors, including Nobel Peace Prize winners have spoken out against the surveillance and bulk data collecting calling it ‘theft’. They have urged the United Nations to create an international bill of digital rights that would enshrine the protection of civil rights in the internet age. I is predictable that it would take the UN a number of years to nail these bill of rights. Countries that do the collection and snooping will sign on to these rights but then ignore. These snooping countries, including the original “Five Eyes” will only go further underground.

We need more whistleblowers.

Two good essays from Heritage Guide to the Constitution:

4th Amendment Clause 1 Searches and seizures

4th Amendment Clause 2 Warrants

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