The Fourth Amendment-Search and Seizure

AuthorRebecca Ann Taylor
ProfessionWriter and attorney
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.
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
Taylor CivilRightsLit_20131004_16-30_Confirmation Pass.indd 97 10/23/13 10:43 AM
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
Taylor CivilRightsLit_20131004_16-30_Confirmation Pass.indd 98 10/23/13 10:43 AM
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.
Taylor CivilRightsLit_20131004_16-30_Confirmation Pass.indd 99 10/23/13 10:43 AM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT