Friday, July 26, 2013

House gives NSA data mining operation a thumbs up

Think the Fourth Amendment still means anything? Think you should be free from government intrusion into your private affairs absent probable cause or a warrant?

Think again.

This week Congress had an opportunity to take a stand in defense of the citizenry's right to be left alone by the government. This week Congress had the opportunity to channel the anger and frustration of their constituents brought about by Edward Snowden's revelations.

And the House of Representatives chose to give the American people a big middle finger instead.

Rep. Justin Amash (R-Mich) brought forward an amendment to a defense authorization bill that would put a stop to the NSA's secret collection of phone records. Mr. Amash said he put the amendment forward in order to protect the privacy of the American people.

The House shot down Mr. Amash's proposal narrowly. House Speaker John Boehner (R-Ohio) and Minority Leader Nancy Pelosi (D-Calif) both voted against the amendment. Opponents of Mr. Amash's amendment used the death and destruction of the 9/11 attacks as a reason for sacrificing the constitutional rights of their constituents. The argument follows the trope that all of this increased security and spying has kept us safe for the last twelve years.

This entire debate should serve as a reminder why opponents of the Constitution insisted on the Bill of Rights. Fearful of what a more centralized, stronger federal government could do, proponents of the Bill of Rights wanted a document that laid out a list of rights that were sacrosanct.

They foresaw a day when the government would move to limit those rights and they wanted them to be enshrined in a document that could prevent the government limiting them in the heat of passion. Unfortunately our courts have been only to eager to limit those rights in the face of allowing a guilty person to walk free because the police crossed a line.

This debate has nothing to do with preventing terrorism or keeping this country safe. It has everything to do with restricting our reasonable expectations of privacy. For once the government makes it known that our telephone records and e-mail metadata are subject to collection without so much as a showing of reasonable suspicion that anyone has done anything illegal, our right to be secure in our person, papers and effects is lessened.

And this is yet another reason that our old metaphors must change. While Justice Scalia's notion that the common law tort of trespass should be our lodestar when determining whether the state has violated the Fourth Amendment isn't adequate to cover government data mining operations, neither is this quaint notion of reasonable expectation of privacy.

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