Obama Continues His War on the Fourth Amendment

White House wants legislation enacted that will punish Internet service providers who fail to cooperate with FBI requests and court orders.


Here they go again. The Obama administration has asked its allies in Congress to introduce legislation that would permit the feds to continue their march through the Fourth Amendment when it comes to obtaining private information about all of us.

The Fourth Amendment, which guarantees the right to be left alone, was written largely in response to legislation Parliament enacted in the colonial era that permitted British soldiers to write their own search warrants and then use those warrants as a legal basis to enter private homes. The ostensible purpose of doing that was to search through the colonists' papers looking for stamps, which the Stamp Act required the colonists to affix to all documents in their possession. The laws that permitted the soldier-written search warrants and the Stamp Act were the British government's fatal political mistakes, which arguably caused a major shift in colonial opinion toward secession from Britain 10 years before the bloody part of the Revolution began.

After the Founders won the Revolution, the Framers wrote the Constitution in large measure to assure that the new government in America would not and could not do to Americans what the king had done to the colonists. Hence the Fourth Amendment's requirement that only judges issue search warrants and only after the governmental agency seeking the warrants presents evidence under oath of probable cause of crime. Regrettably, that was weakened after 9/11 with the enactment of the Patriot Act.

The Patriot Act--written in defiance of the Constitution and in ignorance of our history--permits federal agents to write their own search warrants, just as the king and Parliament had permitted British soldiers to do. Those agent-written search warrants are intended to be limited to the search for evidence of terror plots and are theoretically limited to the seizure of physical records in the custody of third parties, like lawyers, doctors, hospitals, billing clerks, telephone and Internet carriers, and even the Post Office. (Did you know that federal agents can see your mail and your legal and medical records without permission from a judge?) This abominable piece of legislation sacrificed freedom for safety and enhanced neither.

Now the feds want even more personal liberty sacrificed--this time to make it easier for them to collect digital information.

Talk Radio News Service / photo on flickr

The Obama administration wants legislation enacted that will punish Internet service providers who fail to cooperate with FBI requests and court orders. The FBI has revealed that its agents often "lack the time" to obtain search warrants, and so they have gotten into the bad habit of asking Internet service providers to let them in without warrants.

This was notoriously done in the Bush-era, during which the feds promised immunity to telephone service providers that enabled the feds to spy on their customers. That spying was criminal and gave rise to civil causes of action for damages, as well, until Congress changed the law retroactively and granted the promised immunity after the Bush administration spying was exposed.

Some telephone providers declined the government requests then, and some Internet providers decline these requests today. Hence, the proposed legislation would punish those providers who protect the privacy of their customers by telling the FBI to go home.

The second category of punishment sought by the administration is for Internet service providers as to which the FBI has obtained a warrant. A search warrant typically authorizes the government to enter private premises and look for the specific items designated in the warrant. But it does not require the custodian of those specific items to find them for the government. This proposed legislation would change all that.

The government has subtly revealed that when it comes to digital data it often does not know what it is looking for, and its agents lack the skills to hook into the Internet providers' systems. This raises another set of questions, likely to escape members of Congress as they examine this latest assault on the Fourth Amendment.

The Framers were very careful when they wrote the Fourth Amendment, as it imposes the most explicit requirements on the government found anywhere in the Constitution. It requires that all search warrants "particularly describ(e) the place to be searched, and the persons or things to be seized." So, if the government follows the Constitution, it cannot seek what it is unable to identify, and it cannot compel the custodian of whatever records it is seeking to do its work for it.

Until now.

If enacted, the proposed legislation will punish those Internet service providers that fail to share secrets with the feds. The Obama administration hopes the legislation, if enacted, will enable the feds to set up a system that will let them tap into Internet service providers' data directly from FBI offices, without having to serve the warrant or visit the Internet providers' premises.

What a temptation for abuse that will become. It will compel data sharing between the government and Internet service providers that will eviscerate what little remains of personal email privacy. It will profoundly violate the Fourth Amendment by turning employees of Internet service providers into de facto unpaid federal agents. And it will punish all those who decline to go along with this with crippling fines that double every day.

Wasn't the Constitution written to keep the government off the backs of the people? Does the government work for us, or do we work for the government?

NEXT: Pissed Off

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  1. We elected the government we deserve. Boston is a prime example of this, as so many people there lauded the paramilitary forces yanking them from their homes at gunpoint for their own protection.

    1. I didn't elect this government, you silly boy.

      1. Bingo.

        1. Start working at home with Google! It's by-far the best job Ive had. Last Tuesday I bought a gorgeous Lancia Straton from earning $4331 this - 5 weeks past. I began this 7-months ago and right away started to earn at least $69, per-hr. I use this website,, http://Mojo50.com

      2. I can accurately predict the outcome of an election by taking the inverse of my ballot.

      3. WE'RE ALL IN THIS TOGETHER. Or didn't you pay attention to the words when you were reciting the Pledge?

      4. SOSHUL KONTRAKT!!!!11!!!! /prog-tard

      5. Ours is not a constitutional form of government, it's a democracy. And the majority have decided, that once again, it's time to be yanked from our homes at gunpoint.

  2. Wasn't the Constitution written to keep the government off the backs of the people?

    Doesn't Judge Napolitano know that that the Commerce Clause completely cancels out the rest of the Constitution?

    1. General Welfare... Regulate Commerce... Necessary and Proper

      Limitations? What limitations?

      1. "General Welfare" obviously means Food Stamps for everyone.

        1. And Health Care.

    2. up to I looked at the bank draft that said $5552, I be certain that my mom in-law truley making money parttime at there labtop.. there brothers friend has been doing this 4 only about 17 months and just now paid for the morgage on there mini mansion and got a great Volkswagen Golf GTI. read more at wow65.com
      (Go to site and open "Home" for details)

  3. Hence why Hushmail is such a fantastic email provider, a Canadian company with an encryption so strong the NSA cant break it. It is also free

  4. Well now that makes a lot of sene dude.


  5. This was notoriously done in the Bush-era

    But when Obama does it it's OK, because he's TEAM BLUE!

    1. Either that, or we simply refuse to talk about it.

    2. This is why each team gets aways with things that would get the other team crucified for doing the same thing.

      For example, conventional wisdom says Obama (being a D) should be better on civil liberties. But when he isn't, his cheerleaders just shrug and say well "we know he's for civil liberties so we'll give him a pass".

      Likewise when the R's, who we all know are the fiscally responsible party, passed Medicare Part D, most of team red largely looked the other way, because "well, it would have been much worse under the Democrats".

      The calculus is brilliant for any statist politico: You have carte blanche to do whatever the fuck you want on "your" issue.

      1. My ex-wife was a Clinton lover. She believed him to be the best president ever.
        I responded that he probably raped a woman, attacked and demeaned a woman who was abused by him, and he was a serial cheater. "How can you like this guy", I asked.
        "He says the right things . . . " she replied.
        Brother, some people sell their freedom cheaply. I kicked her to the curb when she started cheating. I guess it shouldn'ta been a big surprise - "Clinton made me do it!"

  6. OT, but still related to the FBI and the Bill of Rights:

    The innocent have nothing to fear. http://www.washingtonpost.com/.....ml?hpid=z4

    1. well, everyone is guilty of something. They were probably trying their best to find anything on him to justify keeping him locked up. "Can't pin this crime on you? We'll find something else to pin on you!"

      1. That sounds familiar, I've heard that somewhere before...

        "There's no such thing as innocence, only degrees of guilt" - Inquisitor Toth, Warhammer 40,000: Dawn of War

        You know, 40K is meant to be Dystopian Parody, why is it describing real life so well (short of the xenos infestations)?

        1. I say we are living a dystopia now.

          1. Or Dyspepsia.

  7. I don't understand what is so controversial about being able to punish companies that don't comply with "court orders". That's the exact point of a court order. I'm sure Judge Napolitano punished quite a few average joes for failing to comply with his orders when he was sitting on the bench.

    Also, I believe that the government is not allowing the FBI or whomever to draft their own warrants, but rather subpoenas, which, what do you know, can be challenged in court anyway. (This was the bruhaha over "administrative subpoenas", which the FDA served all of the time). In virtually any civil case in this country, an attorney can draft a subpoena himself and compel the turning over of documents and deposition testimony, often at the cost of thousands of dollars in attorneys fees for the poor soul that is under subpoena.

    1. can be challenged in court anyway

      After the fact, conveniently.

    2. I love the line of reasoning that says this sort of thing happens already, so what difference does it make if this new law passes, you were screwed anyway-

  8. After the Founders won the Revolution, the Framers wrote the Constitution in large measure to assure that the new government in America would not and could not do to Americans what the king had done to the colonists.

    What if in the last general election Americans expressed their desire for continued rule by a king? Wouldn't that make our once beloved Constitution null and void?

    1. We may have a hard time telling the difference with what we have now.

  9. Not to worry. I'm sure AT&T would be only too happy to roll right over for the government.

  10. Judge Napolitano, please provide names of Obama's "allies in Congress" so that those us us who do more than just bitch will know whom to communicate with to put and end to this BS before it gets out of the gate. Thanks!

  11. encryption encryption encryption. at least then it'll take their NSA supercomputer to break into your shit.

  12. what Elaine replied I'm blown away that a student able to earn $5519 in a few weeks on the internet. have you read this web link.. http://www.ask22.com

  13. Does the government work for us, or do we work for the government?

    Silly question.

  14. I can tell you why all authoritarian governments dislike the 4th amendment. Clearly in all the documentation regarding the freeman papers IE declaration of independence and bill of rights clearly shows People are sovereign and where governments derive there sovereign powers from. The right of the People to be secure in THEIR (ownership) persons( corporations,children, pets,wives and a long time ago slaves.Hint think sufferage)effects and things from unwarranted searches and seizures. This insight into equity law which the 4th amendment protects persons is held to protect the estate of the individual people to whom the persons belong under. We know the socialists have been undermine the estate for at least a century by joining the national debt into it and taking our birth certificate and collateralize it to back the federal reserve notes. The Birth Certificate is valued at birth to be 1.8 million at birth and can go up in value as it matures at death. This is why A) they want full control over your life and death because your their financial widget.B) Obama knows as well as his handlers knows that if Americans ever knew this the game would be over quite fast.

  15. "... the legislation ... will enable the feds to set up a system that will let them tap into Internet service providers' data directly from FBI offices, without having to serve the warrant or visit the Internet providers' premises."

    Sadly, this is largely the case now. Only "without having to serve the warrant" seems to change. The rest is already fact.

    From Wikipedia's article on "Communications Assistance for Law Enforcement Act" (yes I know it's not an authority):

    "Originally CALEA only granted the ability to wiretap digital telephone networks, but in 2004, [it was expanded] to include the ability to monitor VoIP and broadband internet communications -- so that they could monitor Web traffic as well as phone calls. [...] a group of higher education and library organizations led by the American Council on Education (ACE) challenged that ruling, arguing that the FCC's interpretation of CALEA was unconstitutional under the Fourth Amendment. However, [...] the D.C. Circuit Court disagreed and summarily denied the petition [...]"

    Even now, ISPs must provide, at their own cost, ability to wiretap customers' web traffic without the customers' knowledge and deliver the data in real-time to the FBI.

    Further, the ISP must ensure that the minimum possible number of employees know about the wiretap. Last I was aware, the penalty for noncompliance is $10,000 per day per outstanding wiretap request.

  16. Do people realize we have a government that allows the US military to rape and do nothing?


  17. up to I looked at the bank draft that said $6716, I accept that my mother in law truly bringing home money in their spare time at their laptop.. there brothers friend started doing this for only about twenty months and a short time ago cleared the mortgage on there appartment and bourt a great Land Rover Range Rover. read more at, http://www.up444.c?m

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