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Should the NSA be allowed to conduct potential warrantless wiretapping of every electronic communication by all U.S. citizens in order to protect them from terrorist threats at home and abroad? Some on the left say yes; some say no. Some on the right say yes; some say no. It's complicated.

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It is ironic that we cannot adequately protect against deranged U.S. citizens and residents from buying assault weapons and shooting up our schools and malls, but the NSA and its operatives are being allowed potentially to conduct the most intrusive inroads into the privacy of all U. S. citizens and residents. Why is this?

If the recent disclosure of the activities of NSA contract employee Edward J. Snowden is true, the NSA can potentially access every communication by you and me over the telephone and internet if they decide to do so, without probable cause. In 10 years, if Richard Nixon II, as President of the U.S., decides to access all electronic records of the persons on his "enemies list" to see what they have been saying for the past decade or so, he could do so, as the "law" now stands, as interpreted by the U.S. government.

Does the Patriot Act overcome the Fourth Amendment to the U.S. Constitution, or not?

The Fourth Amendment states as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.

This Amendment was passed because in the 1750s and 1760s, the British used "general warrants" against the American colonists to issue "writs of assistance" calling upon sheriffs, other officials and loyal subjects to "assist" customs officials in carrying out their duties. Customs writs of assistance served as general search warrants that never expired, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. The writs were permanent and also transferable to another person, and any place could be searched at the whim of the holder; searchers were not responsible for any damage they caused during the search.

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The Fourth Amendment has been interpreted many times since the 1790s, but generally it has been held to mean that a warrant must be sanctioned by a judge for a search or an arrest. To be a reasonable search or seizure, the warrant must be supported by probable cause and limited in scope to specific information provided by a law enforcement official or other appropriate person, who has sworn to it and is thus accountable to the issuing court. It applies to governmental searches and seizures, both federal and state (and local). A "search" occurs when a person expects privacy in the thing searched, and a "seizure" occurs when there is some meaningful interference with an individual's possessory interest in his property, or if a person is arrested or detained, even if briefly.

Since its passage more than 200 years ago, many exceptions have been carved to the search and seizure limitations, and over the past decade, the courts have adjudicated whether the government can access evidence of illegal activity stored on digital technology without violating the Fourth Amendment. For example, in December, 2010, the U.S. Court of Appeals for the Sixth Circuit in U.S. v. Warshak ruled that a person has a reasonable expectation of privacy in his e-mails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider to turn over his e-mails without first obtaining a warrant based upon probable cause.

don't treat on me

How the Warshak case squares with the current revelations over the blanket intrusions of internet providers authorized by the PRISM surveillance program will play out over the next few weeks or months. At the present time, the Foreign Intelligence Surveillance Court (FISC) rules in secret on requests from NSA to access the private information of U.S. citizens and information hosted on U.S.-based computer systems. However, in the secret FISC court, the government does not need to establish probable cause to get a warrant or court order. The FISC court has never turned down any of the 1,788 government requests for a warrant to date (one request was withdrawn, and about 212 were for business records that included electronic surveillance).

However, I have learned that in October, 2011, a FISC court issued an 86-page opinion stating that some NSA activity was unconstitutional. This past week, the Justice Department filed a motion in court, in a lawsuit filed by the Electronic Frontier Foundation, claiming the FISC did not have jurisdiction to release the decision, and that it was properly classified as top secret and should remain under seal. Interestingly, Edward Snowden, the NSA leaker, has ties to the Electronic Frontier Foundation, or at least sympathizes with its objectives.

ted vaill

I wonder if the NSA will intercept this electronically transmitted article before it reaches the editors of, or if I will be put on an NSA "watch list" as a result of writing it. Or am I just being paranoid?

Ted Vaill

Ted Vaill is a recovering Los Angeles lawyer, a filmmaker, and a former Navy JAG lawyer who at that time possessed the highest security clearance an American could hold (he would have to kill you if he told you why). 

Wednesday, 12 June 2013