The Fourth Amendment-Search and Seizure

• Author: Rebecca Ann Taylor
• Profession: Writer and attorney
• Pages: 97-140

97

e right of the people to be secure in their persons, houses, papers,

and eects, against unreasonable searches and seizures, shall not

be violated, and no warrants shall issue, but upon probably cause,

supported by oath or armation, and particularly describing the

place to be searched, and the persons or things to be seized.1

What Privac y Means Today versus What It Should Mean

Historically, government has often taken times of crisis as an opportunity

to go on a power binge and infringe on the civil rights of its citizens, such

as with the Japanese internment camps of World War II and the Communist

investigations of the McCarthy era.

2

And so it has been in the aftermath of

the terrorist attacks of September 11, 2001. In some instances these height-

ened areas of control have led to greater national security, but frequently

the restrictions have resulted in a heated debate over whether we are safer

1. U.S. C. amend. IV.

2. ACLU History: Defending Liberty in Times of National Crisis, ACLU (Sept. 1, 2010),

http:// www .aclu .org /national-security /aclu-history-defending-liberty-times-national-crisis.

Chapter 3

e Fourth Amendment—

Search and Seizure

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as a country as a result of the privacy invasions and whether the control

measures have negatively impacted our civil rights as Americans.

Many of the privacy invasions suffered by individuals today are alleg-

edly justied due to the Patriot Act. There is an enormous abyss between

the protections of the Fourth Amendment and the intrusions of the Patriot

Act, and this gap must be resolved by our lawmakers and in the courts. The

practical effect of the Patriot Act invasions on innocent, law-abiding citi-

zens is to obviate many of our Fourth Amendment rights. Until the reaches

of the Patriot Act are modied so as to reinstate many of our traditional

privacy protections, we should rely on well-settled law that delineates the

extent of these rights, many of which we have come to expect and rely on

as an integral element of our standard of living as Americans.

On June 9, 2013, former National Security Agency contractor and Central

Intelligence Agency employee Edward Snowden revealed3 to The Guardian,

a British newspaper and global website, that “telecom carriers have been

secretly giving the National Security Agency information about Ameri-

cans’ phone calls, and that the N.S.A. has been capturing e-mail and other

private communications from Internet companies as part of a secret pro-

gram called Prism.”4 Although public furor over these revelations seemed

to fade quickly as the Obama administration claimed that these programs

had made only “modest encroachments on privacy,” legal scholars Jennifer

Granick and Christopher Sprigman urged otherwise. Ms. Granick, direc-

tor of civil liberties at the Stanford Center for Internet and Society, and Mr.

Sprigman, professor at the University of Virginia School of Law, argued

that these surveillance programs have no basis in either the Patriot Act or

the Fourth Amendment. Neither one of these two laws authorize wholesale

government spying.

Among other things, Mr. Snowden revealed that “the government has

phone record metadata on all Verizon customers, and probably on every

American, going back seven years.” This data collection is supposedly autho-

rized under Section 215 of the Patriot Act, which permits the FBI “to obtain

3. Mark Mazzetti & Michael Schmidt, Ex-Worker at C.I.A. Says He Leaked Data on

Surveillance, N.Y. T, June 9, 2013.

4. Jennifer Stisa Granick & Christopher Jon Sprigman, The Criminal N.S.A., N.Y. T,

June 27, 2013.

C 98

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court orders demanding that a person or company produce ‘tangible things,’

upon showing reasonable ground that the things sought are ‘relevant’ to an

authorized foreign intelligence investigation.” Under these circumstances, the

FBI does not need probable cause or even to show any connection to terrorism.

However, Mr. Sprigman and Ms. Granick argue that Section 215 was

never intended for a carte blanche data shing expedition; even in the

horric aftermath of September 11 when the Patriot Act was signed into

law, legislators never intended “that Section 215 would be used for phone

metadata, or for mass surveillance of any sort.”5 The government’s ratio-

nale for seizing all of this data is that it might conceivably be relevant to

an investigation in the future, even if it has no relation now. The rationale

for these mass-spying operations then rests on little more than speculation.

Even though the vast majority of information being gathered has no relation

to terrorism or even to crime, the government argues it is justied based on

the speculation that even if that relationship does not exist now, it could

at some point in the future. This argument raises serious questions of not

only privacy violations, but also legal notice and due process.

Then, the government has employed the Prism program to mine data

from emails and other communications between American citizens. How-

ever, the FISA Amendments Act of 2008, under which Prism is purportedly

authorized, states that the government “may not intentionally acquire any

communication as to which the sender and all intended recipients are known

at the time of the acquisition to be located in the United States.” Prism oper-

ated under the rationale that it will “produce at least 51 percent condence

in a target’s ‘foreigness’—as John Oliver of ‘The Daily Show’ put it, ‘a coin

ip plus 1 percent.’” But what about the remaining 49 percent of innocent

Americans caught in the crossre, with their personal data and communi-

cations forever conscated by the government in the process?

Our Fourth Amendment rights have been further scaled back in a series of

2011 Supreme Court decisions, such as rulings “that the police could break

into a house without a search warrant if, after knocking and announcing

themselves, they heard what sounded like evidence being destroyed” and a

nding that no Fourth Amendment violation existed “where a citizen was

5. Id.

99THE FOURTH AME ND MEN T — SEARCH AND SEI ZURE

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