Patriot Act

Make the Feds Get a Warrant to Listen to Our Phone Calls

If section 215 of the Patriot Act expires next week, the feds will need individualized search warrants to spy on us.


Steve Rhodes/Flickr

The Patriot Act has a bad pedigree and an evil history. In the fearful days immediately following 9/11, the Department of Justice quickly sent draft legislation to Congress that, if enacted, would have permitted federal agents to violate their oaths to uphold the Constitution by writing their own search warrants. The draft subsequently was revealed to have been written before 9/11, but that's another story.

The House Judiciary Committee reviewed the legislation and revised it so that it would meet Fourth Amendment norms. The revised version permitted federal agents to write their own search warrants for business records, but the warrants could be challenged by the custodian of the records or by the person whose records were being sought. Because the records were in the hands of a third party, they were in no danger of destruction.

The Fourth Amendment was written largely to assure that the general warrants British soldiers used to search the colonists' homes would never be lawful in the United States. General warrants were issued by secret courts in London based on the government's needs, not on evidence of wrongdoing. They authorized the bearer to search wherever he wished and seize whatever he found.

In order to protect the natural right to be left alone—privacy—the Framers enacted standards in the Fourth Amendment that required the government to produce evidence about the person whose records it wants—called probable cause—and present that evidence to a judge when it wants a search warrant. If granted, the Constitution requires that the warrant particularly describe the place to be searched or the person or thing to be seized.

After the House Judiciary Committee took all this into account in its redrafting of the proposed Patriot Act, the House Republican leadership and the George W. Bush White House pulled a fast one. They switched the painstakingly negotiated version of the Patriot Act for the original version and posted the original version on the House intranet, and leadership scheduled a vote within the hour of posting.

It is safe to say that no member of the House read the Patriot Act in that hour. It takes about 20 hours to read, as it is hundreds of pages in length, and it amends dozens of prior statutes that also must be read. Most House members clearly never knew what they were authorizing. The only negotiated-for provision that survived the switch was the sunset provision of section 215.

Section 215 only authorizes the feds to write their own search warrants for business records and for surveillance of so-called lone-wolf terrorists no matter what telephone they may use. The Bush and Obama administrations secretly persuaded the secret Foreign Intelligence Surveillance Act (FISA) court that somehow section 215 also permitted the NSA to acquire bulk data from telephone and computer use based on the government's needs, not based on probable cause.

Bulk data is undifferentiated as to persons. Rather, it is collected by zip code or area code or service provider customer base. Section 215 expires at the end of this week.

The U.S. Court of Appeals for the Second Circuit, the second highest court in the land, declared the collection of bulk data under section 215 to be illegal. The court ruled that the language of section 215 does not authorize bulk data collection, and no section of the Patriot Act does. That court gave Congress until June 1 to clarify the language. If Congress fails to do so by June 1, the court will entertain applications to bar the NSA from collecting bulk data, and it indicated it would likely grant those applications.

Last week, the House voted to revise section 215, and the Senate did not. Thus, it is likely to expire on Sunday night.

President Obama, who falsely claims to be opposed to the collection of bulk data, can stop it with his signature, but he has not done so. He claims to favor the House version of surveillance, which has ridiculously been dubbed the Freedom Act.

The Freedom Act would get the NSA's computer geeks physically out of the facilities of telecoms and computer servers, but would let them back in digitally with the FISA court's approval, and that approval is not conditioned on probable cause. Rather, it is to be granted whenever the NSA needs the data. In the 14 years of all this spying, the NSA has made more than 34,000 requests of the FISA court; only 12 have been denied.

If section 215 expires next week, the feds will need individualized search warrants in order to listen to phone calls. They already have been getting individualized search warrants for the phone calls and emails of potential lone-wolf terrorists and for the business records of suspected terrorist groups and those whom they have successfully prosecuted for terrorist acts.

If all of the above is not enough to induce anyone in Congress faithful to the Constitution to reject extending section 215, perhaps the findings of the inspector general of the Department of Justice itself will. Late last week, he released a report in which he found that the bulk collection of data has not stopped a single act of terror or aided a single federal terrorism prosecution since the Patriot Act became law on October 26, 2001

The government's bulk collection of data must go. It assaults freedoms, and it fails to enhance our safety.

NEXT: Let the Clock Run Out on the NSA

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  1. It is safe to say that no member of the House read the Patriot Act in that hour.

    As though they would have even if given the time. I propose new legislation requiring lawmakers who are voting yea on any new bill be required to read the entire bill aloud on the House floor before casting their vote. It would solve a number of issues.

    1. Bills would certainly be a lot shorter.

      1. “‘The substance of this Act is contained in Paragraphs 23.f.5 through 675.g.17 of The Congressional Record.’ Yea.”

        1. The Honorable Rich representing the great District of Bumfuck Wherever has registered a Nay vote on the bill in consideration.

          1. “I cede my remaining time to the Gentlefist.”

    2. There was actually something called the “read the bill act” proposed years ago to require exactly that. As can be expected it went nowhere.


  2. It’s time for Congress to respect the Fourth Amendment, argues Napolitano

    That ship sailed out the barn door a long time ago, Judge.

    1. What if Judge Napolitano didn’t ask a series of questions in an article and a tree fell in the woods at the same time?


      2. i know. i dont think i saw a question mark in the whole article.

      3. You guys are too quick…

  3. If Congress fails to do so by June 1, the court will entertain applications to bar the NSA from collecting bulk data and indicated it would likely grant those applications.

    Wait, what?

    You’re saying the court has declared this program illegal and, instead of ordering an immediate moratorium on the data collection, has allowed it to continue until June 1st?

    You’re saying that the court has declared this program illegal and, instead of ordering an immediate moratorium on the data collection, has decided that once the June 1st deadline is here – *if Congress doesn’t change the law – will *still* allow the data collection to continue unless someone else complains and then *might* order the NSA to stop?

    Is this some new definition of ‘illegal’ that’s not in the public dictionary but only in the secret government one?

    1. I agree with your sentiments here regarding The U.S. Court of Appeals for the Second Circuit’s ruling, Agammamon.

      In fact, I am reminded of Dave Chappelle’s skit where a known drug dealer is shown great deference by the authorities. I couldn’t find the video but it’s quite on point here. “We know what you do is illegal but will you please try – at your convenience – to come before a committee and explain things?”

  4. The court has made its ruling, now let them enforce it.

    1. That’s when the court rolls out is Officio Assassinorum agents.

      For those that defy the Court, only God can judge your crimes. Only in death can you receive the Lord’s judgement.

    2. If the Executive were to not obey a court ruling, anyone sworn to support and defend is justified in taking up arms

      1. …I will support and defend the Constitution against all enemies, foreign and domestic…

        I can’t see a more clear-cut circumstance of when “domestic enemies” applies than when a court rules a practice is unconstitutional and the court’s ruling is wantonly ignored. Doing so is a dangerous game.

        1. Except in this case, the Court did not rule 215 unconstitutional, they simply said that 215 didn’t give authority for bulk collection.

      2. Not exactly.

        See – the oath demands support and defense of the constitution. IOW we’re supposed to have *constitutional* supremacy, not supremacy of judicial interpretation.

        So, if the court were to make an unconstitutional ruling the executive would be bound by their own oaths to ignore that ruling.

        1. I don’t disagree. But that’s even more dicey. I was going to add:

          The more interesting situation is where the court claims something is constitutional that clearly isn’t…

          But I left it off because it goes beyond the situation posed.

          1. Yes – but its the only judicial/executive conflict to have ever actually caused a war.

    3. How many divisions does the SC(r}otu(m)s have?

  5. the Framers enacted standards in the Fourth Amendment that required the government to produce evidence about the person whose records it wants?called probable cause?and present that evidence to a judge when it wants a search warrant.

    What if the Framers had required the government to present its “probable cause” to the (accused) person whose records it wants?

    1. Technically, it does. Your contract states that your personal data becomes the property of the service provider (with privacy agreements saying they won’t disclose it without due process). So serving the warrant to the property owner is appropriate, but they’d still need to show probable cause against the individual to get the warrant and they shouldn’t be allowed to tell the service provider they cannot disclose to the individual that a warrant has been served. IMO. INL.

      1. And *technically* that doesn’t matter.

        I can sign a contract with a service provider that all data created while providing that service is my property and TPD *still* says that I still have no standing to challenge subpoenas or warrants served on the service provider.

        1. Agreed. TPD is an abomination. It’s up there with Wickard.

  6. So, the court found that bulk collection is not authorized by the Patriot Act, not that it is wildly unconstitutional. The court is prompting congress to revise the Patriot Act to authorize bulk collection, never mind the Fourth Amendment.

    Got it.

    1. So…

      1. If it were within the powers granted by the Constitution for the Executive to collect bulk data without a warrant…why would the Executive need further authorization in the form of the Patriot Act?

      2. Something, something 10A… What gives Congress the authority to pass a law providing the federal government more power than granted in the Constitution without a constitutional amendment?

      Straight up power grab. Congress writes a law that’s clearly unconstitutional. The executive enforces the unconstitutional law at its discretion for YEARS, and us peons have to endure years of oppression until someone can show harm and spend a fortune running it through the courts to get it repealed. (And let’s not forget that the act allowed them to put gag orders on those the data was collected from. Try to show harm when showing harm lands you in prison.)

      EVERY piece of legislation should require judicial review for constitutionality before becoming law.

  7. Clearly Roberts needs to dig into his bag of made up words and pull something out for this. Penalspy? Spytax? I am not sure what he will pull out of his ass but you can bet it will be as nonsensical as only he can be.

    1. It’s not a search, reasonable or otherwise. It’s an audit, authorized by the tax power and not limited by the Fourth Amendment.

      1. Shut up ProL! Don’t do their dirty work for them!

        1. What an enabler.

        2. I-I can’t help it. I’m a cunning plan addict.

          1. And a Linguist….

            1. As are all the Supreme Court justices.

              1. Grabs pitchfork and yells “Down with the Linguists! They ain’t nobody special!”

  8. The government’s bulk collection of data must go. It assaults freedoms, and it fails to enhance our safety.

    Do we really believe that section 215 was concocted to enhance the safety of the citizenry? What about the government, then? Who will protect the government from the people?

    1. The government *is* just the things we do together – so it *is* the people.

      So, anything good for the government is good for The People.

      1. +1 sophistry.

  9. 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

    It’s unconstitutional. Period.

    1. But see, thanks to the Patriot Act, this search is a totally reasonable search and therefore the NSA doesn’t need a warrant to collect your phone records, so the 4th doesn’t apply. It’s great when Congress can just legislate around the plain text of the Constitution, right? It’s like saying, well we passed a bill certifying that peeling someone’s skin off isn’t a cruel and unusual punishment, so therefore we can do it despite the 8th amendment.

    2. particularly describing the place to be searched, and the persons or things to be seized

      No problem. Any required detailed descriptions are readily extractable from the continually-updated comprehensive electronic database.

    3. Lawyer people have told me that because of something called “precedent” the words mean different things than what their definitions are. You can go to a special school for three years where they teach you to read this special code.

      1. And, the code is unknowable to those it applies to without paying $300/hr to those who’ve obtained the secret decoder ring.

        “Precedent” is evil.

      2. “Precedent” in many cases is an admission that “we made a mistake on thus and such, but we’ll let it stand so that we don’t have to admit that it was a mistake”.

        A Constitutional amendment requiring a sunset to every single law and regulation, and a prohibition against blanket re-authorization might be a good way to solve the issue. It won’t fix a willfully foolish SCOTUS, but since they won’t do their job and defend the written text, we need another way to guarantee that bad laws don’t live on forever.

  10. In order to protect the natural right to be left alone?privacy

    So the Judge agrees with ‘Griswold’.

    Good to know.

    Oh, and Good Morning Peanuts!

    1. Welcome to Retardation: A Celebration. Now, hopefully, I’m gonna dispel a few myths, a few rumors. First off, the retarded don’t rule the night. They don’t rule it. Nobody does. And they don’t run in packs. And while they may not be as strong as apes, don’t lock eyes with ’em, don’t do it. Puts ’em on edge. They might go into berzerker mode; come at you like a whirling dervish, all fists and elbows. You might be screaming “No, no, no” and all they hear is “Who wants cake?” Let me tell you something: They all do. They all want cake.

    2. Why wouldn’t he? Griswold was only about contraception and “marital privacy”. It wasn’t Roe v. Wade.

  11. Plaintiff: “Yeronner, NSA thugs sexually violated my minor child without a warrant!”
    Judge: “That tears it. Bailiff, entertain some applications to bar!”

    1. And throw the little brat in prison for resisting arrest.

      1. And throw the parents in jail for damaging national security by releasing this classified information.

  12. OT: Turning Japanese (I really think so)…

    It’s a vending machine where you’ll be able to get a whole different type of candy: Called PinkBox, this nifty new invention takes products that you would find in a sex toy store and makes them as easy to purchase as a Diet Coke or a packet of Skittles.
    Read more at…..oiQKSDb.99

    1. ?

      Are people really getting so much that they find that they need a sex toy on the spur of the moment beside the dumpsters behind the McDonald’s?

      Because even if you don’t want to visit a skeevy sex shop (and all two of them in my town are skeevy) then there’s the freaking internet.

      This seems like an idea that is actually about 20 years too late.

  13. The draft subsequently was revealed to have been written before 9/11, but that’s another story.

    I disagree about it being another story. I think it’s an important part of this story. It highlights the fact (as obvious as it already seems to many of us) that the government is not acting in good faith, desperately wants total power, and will seize any opportunity to advance toward that goal. That tells us that compromise on this issue is utterly futile; it will not satiate Leviathan.

    1. Ungoliant is insatiable. Even Melkor fled from her/it.

      1. Wait… if the government is Ungoliat, then Melkor is “we the people”. That doesn’t sound right…

        1. I was suggesting that our government, like most governments throughout history, have an insatiable appetite for ever increasing power. I thought Ungoliant represented that idea wonderfully.

          Of course, Melkor also wanted great power, and he wanted to rule Middle Earth, but even his selfishness, greed, and lust for power/dominion were not as great as Ungoliant’s power and appetite, and in fact her hunger would have consumed him. He fled.

          Parsing this out rather than going with the original and simpler idea makes it less coherent, I think.

          For example, I could try to form some kind of analogy and make the case that Melkor (a power-hungry entity) was using Ungoliant (Leviathan-sized government) to illegally get what he wanted (the property of others).

          Sometimes a story is just a story, and let’s just agree that Melkor used Ungoliant to get what he wanted (the Silmarils) from their rightful owner (F?anor).

  14. Good summation, Judge. Thank you.

  15. Judge I love ya and if I were Pres you would be my Attorney General until an opening came up on the Sumpreme Court but please tell me the name of any elected offical since 1800 that has followed the Constution. Also tell me what happen to the the original 13th Amendment and how I can get it reinstated. Hillary Clinton is a bigger threat to this country than ISIS will ever be yet over 40 percent of the poled voting public are to stupid to realize it. Why is it that our so called justice department has not already had the arrogant bitch arrested. If President Obama is looking for some additions to his drone hit list I have a few Republicans and Democrats for him. Actually I see no hope left for this country or its people. I truly believe if Justin Beaver ran against Jesus Christ the Beav would win in a landslide.

  16. Judge Nap did not right this…it doesn’t have a single question mark in it.
    On topic: he is spot on about our rights once again. Rand needs to make him a Nazgul.

  17. I have a question? If Russia dropped a small nuke on Washington DC tomorrow would anyone notice or care. I can see the NewYork Times headlines. White cop kills black serial killer while Washington remains silent.

  18. My best friend’s step-mother makes $85 hourly on the computer . She has been fired from work for nine months but last month her pay check $17089 just working on the computer for a few hours. see it here
    Try this site ?????

  19. The thing about search warrants is?.out of x amount applied for, just how many are rejected by a vaunted, all-knowing, holy judge?

    My senses tell me maybe 99.967% are signed.

    Which would mean they are actually meaningless.

  20. Sheesh. Nevermind.

    “…the NSA has made more than 34,000 requests of the FISA court; only 12 have been denied.”

    I was correct. Warrants are useless and phony. Absolutely meaningless.

  21. In defense, as in war, nothing is more important than information gathering.
    Those who wrote the Fourth Amendment had no thought of IS or this information age in which we now live. Perhaps, when it comes individual rights, how information is used is more important than how it is gathered … and law can be amended.

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