How Federal Agents Illegally Force Twitter, Google, and Banks to Turn Over Private Customer Data Without a Proper Warrant

Private companies are fighting the federal government in court over the Patriot Act's "National Security Letters," which violate the Fourth Amendment to the Constitution.



Earlier this week, FBI Director James Comey gave an interview to 60 Minutes during which he revealed a flawed understanding of personal freedom. He rightly distinguished what FBI agents do in their investigations of federal crimes from what the NSA does in its intelligence gathering, when the two federal agencies are looking for non-public data.

The FBI requires, Comey correctly asserted, articulable suspicion to commence an investigation and probable cause to obtain a search warrant. It does this because its agents have sworn an oath to uphold the Constitution, and their failure to comply with that oath may very well render the evidence obtained by unconstitutional means useless in court.

The NSA, as we know, makes no pretense about presenting probable cause to a judge. Rather, it asks a judge on a secret court (so secret that the judges themselves are kept from the court's files) for general warrants. A warrant based on probable cause must specifically describe the place to be searched and the person or thing to be seized. General warrants, which the Constitution prohibits, permit the bearer to search wherever he wishes and seize whatever he finds.

British government agents and soldiers used general warrants issued by a secret court in London to invade the privacy of the colonists. The British also used another tool now prohibited by the Constitution—called writs of assistance—which permitted certain agents and soldiers to write their own search warrants and serve them upon the colonists. This was done, it was argued, because London was too far from America and the British claimed an urgent need to search colonial homes to determine whether the owners had paid the king's taxes. The British use of general warrants and agent-written warrants became arguably the last straws that tipped colonial minds toward revolution.

Comey knows that if his agents get caught violating the Constitution, their searches will be fruitless. Yet, he conveniently failed to reveal in his interview that under the Patriot Act, his agents can and do write their own search warrants—just as British agents and soldiers did. The Patriot Act calls these warrants by the euphemism "national security letters."

A national security letter is a search warrant in which one federal agent authorizes another federal agent to search for and retrieve data held by third parties. The list of third parties that can be subjected to an agent-written search warrant includes virtually all entities required by law to keep records, such as telephone providers, banks, lawyers, physicians, hospitals, supermarkets, utility companies, credit card companies, and computer service providers; the list is nearly endless. Five federal judges have held this section of the Patriot Act to be a violation of the Fourth Amendment (which provides that only judges may issue search warrants) and thus unconstitutional.

The Patriot Act also prohibits the recipient of an agent-written search warrant from telling anyone about it—that includes a lawyer in confidence, a priest in confession, a spouse in the home, even a judge in open court. It is this section of the Patriot Act that is being challenged by Twitter and Google in the Ninth Circuit Court of Appeals in California.

Twitter and Google have apparently received many of these unconstitutional agent-written warrants, and they want their customers to know what the government is doing. Two federal judges already have found this section of the Patriot Act to be violative of the First Amendment ("Congress shall make no law … abridging the freedom of speech.") and thus unconstitutional.

The Patriot Act is the most unconstitutional legislation since the Alien and Sedition Acts of 1798, which proscribed speech critical of the government; yet the FBI loves it. Its premise is that in dangerous times, if we surrender our freedoms to the government, the government will keep us safe until the danger passes. This is a flawed argument.

The Declaration of Independence recognizes the continuous possession of personal freedoms ("endowed by their Creator with certain inalienable rights"), and thus they cannot be stolen by a majority vote in Congress, but only surrendered by a personal, intentional, knowing choice. And history teaches that government does not return freedoms once stolen or surrendered. Without freedom, who will protect us from the government?

The government can't deliver the mail, pave potholes, balance the budget, fairly collect taxes, protect us from Ebola, even tell the truth. Who would trust it with personal freedoms?

Since 2001, Comey's agents have written more than half a million of their own search warrants, and their targets don't even know what was done to them. He will argue that if the evidence from these agent-written warrants is not used in court, there is no harm to the unknowing victim, and hence no foul. Yet the Constitution was written to keep the government from interfering with our natural rights even when it does so in secret, because no government violation of inalienable rights is harmless.

NEXT: Brickbat: Stop and Frisk

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  1. So, the courts have to decide whether legislation like the Patriot Act overrides the Constitution. Gee, I guess which way they’ll go?

  2. Standard O.P for the F.B.I. since Hoover

    1. Which would mean, SOP since the birth of the FBI.

  3. Amazingly, only two question marks.

    1. DON’T MAKE FUN OF JUDGE N! He’s one of the good guys!

      (I don’t care much for that other schtick he uses either. It was fun once.)

    2. Good one.

  4. He will argue that if the evidence from these agent-written warrants is not used in court

    “If not, then what is the point of obtaining it?” is the proper follow-up question.

    1. It was a common tactic cops used to employ, especially during prohibition. You break into a guy’s house while he’s not at home, see he’s running a distillery. Now you know you’re on the right track so you bring your troops to bear by watching him, following him everywhere he goes until you see him having lunch with a known criminal. Now you’ve got enough for a real warrant to search the house, and you never have to mention breaking into the house the first time.

      In this scenario the FBI can dragnet a bunch of emails or private messages looking for kiddie porn, or references to drug smuggling or whatever. Once they know they’ve got a bad guy they start doing all the legal things to watch him, or they try to set him up to download kiddie porn. Then they can get the real warrant, again never having to mention the first dragnet that gave them suspicion in the first place.

      1. What do you mean was? It was disclosed last year that government agents are using Parallel construction with NSA Intel. So, I’m sure they are using it with NSL’s as well.


  5. Private companies are fighting the federal government in court over the Patriot Act’s “National Security Letters,” which violate the Fourth Amendment to the Constitution.

    Again I ask: Are they really fighting or just play fighting? I suspect the latter.

    1. Again I ask: Are they really fighting or just play fighting? I suspect the latter.

      Does it matter? If the FBI shows up and puts a legal gun to a business’s head, do you fault the business for not slapping at the gun and laughing?

      Certainly some of these organizations were in bed with the government to begin with, but even then it’s still a little victim-blaming-y.

  6. Can we stop inflating the egos of these people and stop calling them “agents” and “special agents”?

    They’re frean’n plain old employees. That some have powers of arrest doesn’t change that.

  7. I guess the Judge missed the memo from the left that companies having your private information to try and sell you things you might want is exponentially more of a threat to freedom.

  8. Once again, Reason provides an ignorant (or knowingly dishonest) view of history. The mass violations of the type described became accepted practice BEFORE The Patriot Act. They were the result of welfare reform in both the Reagan and Clinton eras. By the time The Patriot Act was passed, there was no question that the practices had been fully approved by state and federal courts.

  9. The device used is a subpoena, which does not require probable cause, but investigative need. A subpoena is for third party records that are not protected by the 4th Amendment, because the records are not the person’s but records possessed by the third party. Administrative subpoenas long pre-date the Patriot Act. You might want to try some facts for a change. If you don’t want records about you accessed by the government, don’t let third parties have control over those records.

  10. “Nice business you have here. Wouldn’t it be a shame if it had to get regulated some more?”

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