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More holes in the Fourth Amendment

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By Andrew P. Napolitano
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.

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