Fourth Amendment

'Restore the Fourth': Repeal the Patriot Act and End NSA Bulk Data Collection

The natural right protected by the Fourth Amendment is the right to be left alone.

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If you plan to visit a college campus this month, don't be surprised if you see signs and placards encouraging you to "Restore the Fourth." Restore the Fourth is not about an athletic event or a holiday; it is about human freedom. The reference to "the Fourth" is to the Fourth Amendment, and it is badly in need of restoration.

In the dark days following 9/11, Congress enacted the Patriot Act. The Patriot Act has many flaws, including its prohibition of certain truthful public speech, but its most pernicious assault is on the constitutional right to privacy.

Trojan_Llama/Flickr

One of its sections permits federal agents to write their own search warrants and serve them on persons and entities who by law are the custodians of records about others, such as physicians, lawyers, bankers, telecoms, public utilities, and computers servers. The same section of the act has been used perversely by the NSA and the secret FISA court to authorize the bulk collection of data. Bulk collection of data—the indiscriminate governmental acquisition of the contents of emails, text messages, telephone calls, bank statements, and credit card bills—is what the NSA seeks when it acquires all data in a specific area code or zip code or from a named provider, like Verizon, AT&T, and Google.

What's wrong with bulk collection? The warrant issued by the FISA court that authorizes bulk collection is known as a general warrant. A general warrant does not name a person or place, but authorizes the bearer to search wherever he wishes and seize whatever he finds. General warrants were a tool of colonial repression used by the king prior to the American Revolution. They were issued by secret courts in London. They were so loathed by the Framers that they are expressly forbidden by the Fourth Amendment.

The Fourth Amendment requires evidence—called probable cause—about a particular person, place, or event to be presented to a judge and requires the judge to decide whether it is more likely than not that the government will find what it is looking for. The wording of the amendment could not be more precise, and in a Constitution known for vague language, this precision is instructive: All warrants must "particularly descr(ibe) the place to be searched, and the persons or things to be seized." The Fourth Amendment protects all persons' bodies, houses, papers, and effects.

Yet the Patriot Act purports to avoid these requirements by permitting secret FISA court judges to authorize NSA agents to execute general warrants; thus, without probable cause and without describing the place to be searched or the person or thing to be seized.

The purpose of the Fourth Amendment is to prohibit government fishing expeditions, common to totalitarian countries. The theory of the Fourth Amendment is that a restrained government—restrained by an instrument the government cannot change, like the Constitution—is essential if people are to be free. The natural right protected by the Fourth Amendment is the right to be left alone.

Enter Restore the Fourth.

Restore the Fourth is a movement gaining steam now because the section of the Patriot Act that is so constitutionally offensive expires on May 31. President Obama wants it extended so his spies can continue their bulk collection of data. The Republican leadership in the Senate agrees with the president and accepts the myth that less freedom equals more security. The Republican leadership in the House has proposed a Band-Aid that would require the telecoms and computer service providers to sit on bulk data until the feds come calling, but to surrender it without the judicial finding of probable cause or specificity.

The Patriot Act should be repealed because it violates the Constitution and it doesn't keep us safe. It renders us less safe and less free. The indiscriminate unconstitutional bulk collection of data is far too much raw material even for the 60,000 NSA agents and contractors to navigate. We saw that as recently as last weekend, when two jihadists known to the FBI and who had used email and cellphones attacked a free speech symposium outside of Dallas and were stopped at the last minute by courageous local police who saw their guns—not by federal spies' warnings.

When longtime NSA Director Gen. Keith Alexander was asked under oath how many plots the NSA has stopped in 10 years, he stated 53. The next day, he modified his testimony to three, but declined to elaborate. Edward Snowden, whose revelations about NSA spying have never been refuted, says that no plots have been stopped because the NSA looks at everyone, rather than targeting the bad guys, as the probable cause requirement—if complied with—would induce it to do.

Americans are largely free because of the rule of law. The rule of law means a supreme law of the land to which even the government is subject, just as are all persons. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government. In that world, who or what would restrain the government? An unrestrained government is what we fought the American Revolution against.

That's why we must Restore the Fourth.

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  1. If you plan to visit a college campus this month, don’t be surprised if you see signs and placards encouraging you to “Restore the Fourth.”

    They might want to break out some “Restore the First” and, yes, “Restore the Second” signs on college campuses.

    1. And the third and the fifth.

      Oh yeah – and the 9th too.

    2. It’s considered normal that accepting federally-subsidized loans means it’s OK for the government to force colleges to deny due process to certain people. Suggest that it would be OK for the government to use the same power to make colleges accept the 1A, and people would treat you like a freak. (Not that the government wouldn’t misuse such a power, of course.)

    3. They’re too busy useing the first as toilet paper.

  2. When in discussions with friends, most of which are liberal or progressive here in Massachusetts, about politics and policy, I am sometimes asked what I want from society and government. My answer is always the same: to be left alone. This often is met with blank stares or cocking of the head, but occasionally with a tsk tsk.

    Restore the Fourth.

    1. Same state, same experience.

      On the subject of Obumacare, a coworker’s comment was that “it was all about compromise”, that is: “we get some stuff that we want, and they get some some stuff that they want”. The response “but what if what ‘they’ want is just to be left alone?” is incomprehensible to these folks.

      1. Incomprehensible, good and accurate word in this context.

  3. Holy shit. Only two question marks.

  4. If Rand Paul wants any chance at the presidency, he should pick Andrew Napolitano as his running mate and announce it soon. This way you have two folks out there on the campaign trail reaching more voters.

    A series similar to free to choose (without the Chicago school monetary nonsense) including both of them debating guests would be a big help as well. They could even invite the other candidates on. If they refuse to join the debate, that’s something that can be run through ads or in debates. “Why are they afraid to engage in an uncripted discussion?” Etc.

    1. If Rand gets the nom he’ll probably choose Scott Walker. Unless there is a woman or minority candidate that has some centrist appeal.

      1. On the flip side, I suspect Rand will make an attractive VP choice if someone like Walker gets the nom.

        1. nom nom nom

          1. nom nom nom

            On some french toast sticks!!!!!!!

    2. Personally, I’d like to see Napolitano run himself, just to have the chance to shred the likes of Jeb Bush and Lindsey Graham in the first debate.

      -jcr

    3. No, no, no. Think bigger and better “Justice Napolitano”.

  5. Interestingly. it was Brandeis that came up with the concept of the “right to be left alone”.

    He was all over the map, that guy, and his quotes of support come FROM ALL OVER THE MAP…

    1. “Starting in 1890, he helped develop the “right to privacy” concept by writing a Harvard Law Review article of that title, and was thereby credited by legal scholar Roscoe Pound as having accomplished “nothing less than adding a chapter to our law”.

      “In 1916, President Woodrow Wilson nominated Brandeis to become a member of the Supreme Court. However, his nomination was bitterly contested, partly because, as Justice William O. Douglas wrote, “Brandeis was a militant crusader for social justice whoever his opponent might be.”

      The “right to be left alone” and being a militant SJW are kind of mutually exclusive to me…

  6. I’d join restore the Fourth movement but I’d have to sign up for the Facebook.

    1. Restore the fourth by signing away all of your privacy!

    2. You have a right to privacy, but not when you use it to do creepy stuff.

    3. My mom makes $70 every hour on the computer . She has been fired from work for 9 months but last month her pay was $18079 just working on the computer for a few hours.
      See here. ?? ????????? http://www.jobsfish.com

  7. Another home run!

    Thank you Judge!

  8. Like JCR said. Andrew Napolitano would destroy these fuckers in a debate. Folks have been pushing him to run, but he chooses not to…..which sucks.

    At least at the debates it would be like

    Judge Napolitano: We’re supposed to secure the blessings of liberty, not destroy them!

    Rand Paul: I agree, can’t argue with that.

    Other candidates: rolling eyes, crossing arms and scoffing at the thought of people being free.

    1. How about SCOUTUS seat?

      1. Yes, yes, a thousand times yes!

  9. Without the rule of law, we are subject to the rule of whoever runs the government, and our rights become licenses to be granted or denied by whoever runs the government.

    SPLOOSH! /Tony

  10. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netjob80.com

  11. I just wish colleges would defend the First (not to mention the Second and Fifth).

  12. I suspect that both the individuals and the mentality that saw fit to enact The Patriot Act, so called, would unite to block it’s repeal. Failing that, they would put up one hell of a fight to Retain the POLF(Piece of Legislative Feces) that it is.

  13. This is a very tricky situation — repealing the patriot act. All is well and good until another major terrorist act is committed on American soil. At that point whatever the merits of NSA data collection relevant to the 4th amend will become irrelevant. The data collected by nsa is data, hardly the same as the gov’t spying on your private activities and listening in on your phone calls. Not for nothing, but Snowden is hardly a hero. He hides out in a totalitarian country that has no respect for the very rights he supposedly as protecting — wow. The NSA seeks patterns in the data collection, and it does have value. Unfortunately, I get the impression that the writers for Reason don’t want the US extending themselves — not in any militarily action around the world or in seemingly invasive Snowden exposure activities that have no impact on law abiding citizens lives. I’m as anti government extensions as anyone; I hate the growth of meddling government and understand the purpose of our government in the const. is lst of all the protection of our rights and our country. If terrorists infiltrate our system because the gov’t can’t collect data — how does it protect us? This is an absolute threat, and maybe it could be handled in a more organized fashion, inetegrating with states, etc….but it is hardly such a gross violation of our rights.

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