Share This Page

More holes in the Fourth Amendment

| Saturday, May 4, 2013, 9:00 p.m.

Here they go again. The Obama administration has asked its allies in Congress to introduce legislation that would permit the feds to continue their march through the Fourth Amendment to obtain private information.

The Fourth Amendment guarantees the right to be left alone. It was written largely in response to legislation Parliament enacted in the Colonial era that permitted British soldiers to write their own search warrants and then use those warrants as a legal basis to enter private homes.

The ostensible purpose was to search through the Colonists' papers looking for stamps, which the Stamp Act required the Colonists to affix to all documents in their possession. After the Founders won the Revolution, the Framers wrote the Constitution to assure that the new American government would not and could not do what King George had done.

Hence the Fourth Amendment's requirement that only judges issue search warrants and only after the governmental agency seeking the warrants presents evidence under oath of probable cause of crime. Regrettably, that was weakened after 9/11 with the enactment of the Patriot Act.

Now the feds want even more personal liberty sacrificed — this time to make it easier for them to collect digital information.

The Obama administration wants legislation to punish Internet service providers that fail to cooperate with FBI requests and court orders. The FBI has revealed that its agents often “lack the time” to obtain search warrants, instead asking service providers to let them in without warrants.

The second category of punishment sought by the administration is for Internet service providers for which the FBI has obtained a warrant. A search warrant typically authorizes the government to enter private premises and look for the specific items designated in the warrant. But it does not require the custodian of those specific items to find them for the government. This proposed legislation would change all that.

The proposed legislation will punish providers that fail to share secrets with the feds. The Obama administration hopes the legislation will enable the feds to set up a system that will let them tap into Internet service providers' data directly from FBI offices , without having to serve the warrant or visit the Internet providers' premises.

What a temptation for abuse. It will compel data sharing between the government and Internet service providers, eviscerating what little remains of personal email privacy. It will profoundly violate the Fourth Amendment by turning employees of Internet service providers into de facto unpaid federal agents.

The Constitution was written to keep the government off the backs of the people. Does the government work for us or do we work for the government?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

TribLIVE commenting policy

You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.

We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.

While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.

We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers

We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.

We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.

We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.

We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.