New Senate Bill Says Government Can Access Your On-line Info Without Warrant

Vermont Senator Patrick Leahy, Democrat—The Party of Freedom™ (Government freedom, that is)—has forgotten the following words:

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.

Or perhaps he never knew them. They arise, after all, from the United States Constitution, the document which at one time specified the limitations of the government, but which now is interpreted as detailing the limitations of the government’s charges, i.e., we the people.

CNET is reporting that Leahy, “the influential Democratic chairman of the Senate Judiciary committee”, has written a bill which “authorizes warrantless access to Americans’ e-mail” and other on-line information, such as “Google Docs files, Facebook wall posts, and Twitter direct messages.”

A highlight, “Permits state and local law enforcement to warrantlessly access Americans’ correspondence stored on systems not offered ‘to the public,’ including university networks.” Another: “Authorizes any law enforcement agency to access accounts without a warrant — or subsequent court review — if they claim ‘emergency’ situations exist.”

The Freedom of Information bill, which is the Orwellian name I suggest, would allow certain government agencies to “gain full access to Internet accounts without notifying either the owner or a judge.” Which agencies? Why, independent regulatory agencies, of course. Here is a complete list of government entities which are considered “independent regulatory agencies.”

  1. Board of Governors of the Federal Reserve System
  2. Commodity Futures Trading Commission
  3. Consumer Product Safety Commission
  4. Federal Communications Commission
  5. Federal Deposit Insurance Corporation
  6. Federal Energy Regulatory Commission
  7. Federal Housing Finance Agency
  8. Federal Maritime Commission
  9. Federal Trade Commission
  10. Interstate Commerce Commission
  11. Mine Enforcement Safety and Health Review Commission
  12. National Labor Relations Board
  13. Nuclear Regulatory Commission
  14. Occupational Safety and Health Review Commission
  15. Postal Regulatory Commission
  16. Securities and Exchange Commission
  17. Bureau of Consumer Financial Protection
  18. Office of Financial Research
  19. Office of the Comptroller of the Currency
  20. Any other similar agency designated by statute as a Federal independent regulatory agency or commission

Your first reaction, if you are not a if-the-Democrats-proposed-it-it-must-be-good partisan, New York Times journalist, academic, or insane person, is naturally Why The Hell Are There So Many Government Commissions? Not on this list, but why do they exist at all?

Your second reaction is to note the area which I helpfully printed in bold. Any other agency. Such as (CNET tells us) the “FBI and Homeland Security.” Yes, any agency of our federal government would be able to, without a warrant and without just cause, access your personal information. Why? For the good of the People.

For your good. That’s why they’re doing it. It’s for your own protection. They know what’s best.

Now, if word gets out about this (we can only call it a) usurpation, it’s not likely to remain in it’s current form. CNET reports several large tech companies are aghast, especially those selling “cloud” services. Companies like Apple, Amazon, Google, Microsoft, etc. which are big Democrat donors. So there is a good chance this bill will be quashed.

What should have you astonished is that this bill was proposed at all. There is no competent reading of the Fourth Amendment which would allow private mail viewable to bureaucrats without a warrant and without just cause. Leahy’s version is therefore incompetent. It is a more than a dereliction of duty, it is an affront. An assault, even, on sense, on the rule of law, on true freedom.

We have seen these words below many times, but the foolish individuals we have sent in our names to Washington could stand to hear them again—again. Take it away, Ben.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety. — Benjamin Franklin

Write your Congressman and Senators today.

Update See comments below for words about Republicans.

Comments

New Senate Bill Says Government Can Access Your On-line Info Without Warrant — 27 Comments

  1. I think this can be seen as a logical extension of the Patriot Act. Should it pass, Chief (in)Justice Roberts no doubt will find some imaginary reason for upholding it as Constitutional, perhaps even using the precedent he set with the “health care” law (i.e., Congress passed it so it must be legal).

  2. Hmmm. Similar to your indictment of Ron Paul, it sounds like you have a “penchant to exaggerate and to see spurious boogeymen.” Maybe Paul was correct all along.

  3. Jim,

    I was speaking of Paul’s earlier days, and provided links to some examples.

    MattS,

    Good clarification. I’ll change the text. Accuracy first!

  4. I am a lawyer.

    I am not sure that the fourth amendment covers tweats, facebook, google documents, etc.

    Who owns your facebook page – you or facebook?

    Who owns the calling information you make via your cellphone (the date, time, # you call and duration of call) – you or the cellphone company?

    Ditto for credit card purchases – who owns that data? You or the credit card company? You don’t have to use Visa, so I come down on Visa owning the information on the date, location and amount of any credit card purchase.

    An analogy – your letter is private (I believe that is still the law), but what about the fact that you sent a letter on a particular day? Do you own that fact, or might the post office be able to divulge that information without your permission? I think they can.

    Even with letters (or emails), once you send it, do you own it? Can the recipient publish it on the internet? I think they can – so you have waived your ownership as soon as you send the communication. It is literally out of your hands.

    Can the person you speak to on the phone divulge your conversation, if they want to? Of course.

    I think there is a non-trivial argument that the data you allow third parties to accumulate via cellphone, and websites is owned by the cellphone company, twitter, facebook, google, etc. – not you. Not the content of the call, but facts surrounding the call itself. As to tweats and facebook – I am afraid they own it all.

    So that makes information owned by third parties different than your papers in your house, or the computer in your house.

    If I am a cellphone company, and the government wants to look at my data, I can either agree or not – but it is the company choice, because it is their data.

    If you want privacy I would suggest not using twitter, facebook, gmail, etc – because I think they own the data you voluntarily submit through their systems. I would host my own server and encrypt everything on it, so a warrant was required to get at the information.

    Just putting that out there for discussion.

  5. RickA,

    Thanks. There is a point to be made about Facebook, which is for the most part an open bulletin board. Twitter certainly is. Email is and should be private, even though the courier is often a third party. But mailmen, UPS & Fedex drivers, and bicycle messengers who carry physical letters are also third-party couriers to whom you voluntary submit your private correspondence and who could also turn over (or otherwise read, though technical means) that correspondence. Trust is involved in both on- and off-line. There is nothing unique in privacy of mail just because it happens to be in electronic rather than paper form.

    Visa and cellphones are other good points: that depends on the agreement you signed with the carriers. If in those agreements you allowed them access and use of your data, then fine. If not, then I say it is yours and not theirs. That includes the circumstance of the call, I think, but in a weaker sense. That seems more like joint ownership. Asking Fedex if they carried a letter is different than asking them what the content of that letter was.

  6. Please examine your premise:

    For the arguments put forward by RickA to have any relevance whatsoever, one must first submit to the worldview holding government as the provider of rights.

    Does the constitution define your rights, or does it define the rights of government?

    The current truth holds that you only have those rights enumerated in the Constitution–that, essentially, government defines and grants you your rights. With that worldview, you need arguments such as RickA’s to justify a position of support or opposition to this bill.

    So I ask, where do your rights come from? God or Government?

    If you say God, do you subscribe to the old way of thinking where the King/Parliament/Government is the benevolent mediator between you and God, or does God give you your rights directly?

    The US Constitution grants specific, enumerated powers (rights) to our government. This simple fact has been twisted–legally, philosophically and rhetorically–from the moment it was first written down; now, it seems most people hold the current truth to be the actual truth.

    Under the actual meaning of our constitution, the question you need to ask is: which enumerated power grants the government the authority to do this?

    Did you catch the subtle but profound distinction? It’ll likely appear merely a semantic or rhetorical difference at first, but look closer. Here are the two arguments/questions put forward by the two opposing philosophies:

    1. Does the 4th amendment define this as a right granted to the people?
    Or
    2. Does the Constitution grant this power to the government?

    If the answer to question #2 is ‘no’, then question #1 is completely irrelevant. And, yes, the answer to #2 is absolutely ‘no’.

  7. Brigs,

    While you have corrected the wording of the title, the entire article is still false.

    According to the article in The Hill I linked to, Leahy claims that the version of the bill that CNET has is a draft copy circulated by other supporting the warentless access to email (which the ariticle says is current law) but that Leahy himself has never supported that change to the bill in question and would oppose it.

    Quotes from the article on The Hill:

    “The original version of Leahy’s bill would have toughened the privacy protections of ECPA.

    Under current law, police only need an administrative subpoena, issued without a judge’s approval, to read emails that have been opened or that are more than 180 days old. Police simply swear an email is relevant to an investigation, and then obtain a subpoena to force an Internet company to turn it over.

    Leahy’s revision would require police to obtain warrants to read private emails, regardless of how old they are or whether they were opened.”

    “The aide said it is possible that CNET was referring to a draft of the bill circulated by other lawmakers or interest groups, but that Leahy would not support any similar proposal.

    “Ideas from many sources always circulate [before] a markup [for discussion], but Sen. Leahy does NOT support such an exception for #ECPA search warrants,” Leahy’s account tweeted.

    The account tweeted that “the whole point of the Leahy reforms is [to] require search warrants [for government] to access email stored with [third] party service providers.””

    If The Hill article is correct, the CNET article you quote is bass ackwards.

  8. MattS,

    Let’s hope The Hill’s version is correct. Even if so, what yahoo “circulated” the draft? Who thought it wise? Was it a “trial balloon”, in the sense that it was put out with Leahy’s knowledge to see how much resistance it garnered, and if it was significant, he could say, “I never liked it”?

    Why, in other words, was this thing drafted in the first place?

  9. Briggs,

    Again from The Hill article:

    Chris Calabrese, a legislative counsel for the American Civil Liberties Union (ACLU) who has been following the issue, said he had seen the draft bill cited by CNET, but he said he was never under the impression that Leahy supported it.

    “There was a lot of language floating around,” Calabrese said. He added that the ACLU would not support any proposal that includes broad exceptions for civil enforcement.

    “That undercuts the whole purpose of the bill,” he said.

    Calabrese noted that the proposal cited by CNET is similar to amendments proposed by Sen. Chuck Grassley (R-Iowa), the Judiciary Committee’s top Republican.

    Grassley expressed skepticism about creating new barriers for police investigations at a committee meeting in September.

  10. Seems far more likely that Sen. Grassley or someone from his office circulated the draft cited by CNET.

  11. Pangloss:

    The 4th amendment is an enumerated right reserved to the people.

    It is not granted from the Federal Government to the people.

    Instead, the bill of rights is a list (their are other unenumerated rights as well) of items which were not given to the Federal government when the states formed the union.

    Of course the devil is in the details.

    What is the definition of “unreasonable” – that is pretty wide open for interpretation. Hence all the exceptions to the warrant requirement which have evolved over the centuries.

  12. MattS,

    If that is so, then a pox on Grassley and his office. Republicans—The Party of Protection (government protection).

  13. I would also point out that the Federal bill of rights only applied to the Federal Government until the Civil War. Only after the 14th amendment passed were some of the rights enumerated in the bill of rights applied to the states (a process still occurring today).

    For example, several states had an official state religion for a decade or two after the formation of the union. Gradually, the states adopted constitutions with similar protections to the Federal Bill of Rights, and some went further than the Federal Bill of Rights – but some provided less protection.

    Massachusetts got rid of their state religion in 1833 (they were the last).

  14. RickA,

    Perhaps you can share some insight… under what circumstances can the Federal Government intercept and read my postal mail, or listen in on my phone calls? I am under the impression that those do require a warrant. However, if they want to seize my phone records — who I called and for how long, that would only require a subpoena.

    And perhaps a discussion of the difference in the threshold between a warrant and a subpoena would help.

  15. “Republicans—The Party of Protection (government protection).”
    “Democrat—The Party of Freedom™ (Government freedom, that is)”

    Democrats + Republicans = Government by the government for the government.

  16. Doug M:

    A warrant shall only issue on probable cause.

    A subpoena is a court order for a person to show up to be questioned, or to turn documents over. In a civil action, you only need to show a reasonable likelihood of relevance to obtain a subpoena.

    I agree that to read your mail should require a warrant. However, spying is different. So if you wrote a letter to Osama (a terrorist), a spy may read it. Now whether they could use any information they gleaned from your letter in charges against you would be another question – but I have a feeling that spys are reading emails and letters all the time (especially if they go outside the United States). (Just my opinion – I do not know this).

    I am pretty sure that while most phone companies require a subpoena, that is just a butt covering thing. I think a lot of companies do take the position that call records are their data. After 911 some phone companies gave all kinds of access to phone records and credit card records – to stop terrorism. Some companies voluntarily gave access, some required a subpeona. We know this because one or more companies which gave voluntary access were sued – but then I think got off when the patriot act passed (which indemnified companies who cooperate)(I think).

  17. Library records are an example of what kind of information is “private” and “confidential” and what is not (for instance, who checks out certain books). When I was a kid, I could go to the public library and see in the little card in the back all of the people who had checked out the book before I did. Those days are gone, but the American Library Association takes privacy seriously: (http://www.ala.org/Template.cfm?Section=interpretations&Template=/ContentManagement/ContentDisplay.cfm&ContentID=132904) . I would think searching up someone’s lending history without a warrant is certainly a violation of the Bill of Rights, and similarly, so is snooping in someone’s email. However, I think Facebook and other social media interactions are public or at least semi-public and may not fall under same privacy protections.

  18. People who blame this kind of stuff on the Democrats have short-term memory loss. It’s a slippery slope that started with Bush and the Patriot Act. Call it non-partisan evil, if you’d like.

  19. @rank sophist,

    I will agree with you that it’s non-partisan, but it started well before Bush. This kind of stuff goes at least back to the SEDITION ACT of 1798 with almost every administration since pushing the envelope just a little further.

  20. It is interesting since republican have used 9/11 as the excuse for the Patriot Act, to request passport at the Canadian border. How much money is wasted on false security at airports, etc.

    Americans are afraid of a lot of things, communism, terrorism, atheism, islamism and many other «ism». How can anyone explain the fear of Iraq and Saddam Hussein a small country with a very weak army who had no chance to harm America.

  21. Matt,

    Interesting–never heard of the Sedition Act before. Looking it up, it sounds pretty bad. I didn’t realize this stuff had been going on for so long. Kind of puts the Patriot Act in a whole new light.

  22. @rank sophist

    Yes it does and it goes back to before either the Democrats or the Republicans existed.

    I am sure you have heard the “You don’t have the right to yell fire in a crowded theater” quote. That quote comes from a SCOTUS decision in the civil war era in a criminal case against an anti draft activist who was arrested and jailed for speaking out against the draft. If you actually read that decision, it stands not for reasonable limits on first amendment rights but for the idea that the government can censor anything it wants at any time for any reason by any means up to and including criminal penalties.

    Oh and that counting slaves as three fifths of a person clause in the constitution that “anti-rasism” activists like to mention to show how terrible the founding fathers really were, that was actually an anti-slavery provision. The slave states wanted slaves counted fully for purposes of determining representation in the House but the free states opposed this because it would have given the slave states a strangle hold on the House of Representatives.

  23. MattS,

    The Slave state wanted the slave counted for representation but the slave didn’t have the right to vote. They want the butter and the money for the butter.

  24. @Sylvain Allard,

    The census count for representation has never just been limited to elegible voters.

    Even today, minors count and back then before women’s suffrage they counted the women and children. In fact in most states back then not all adult white males were eligible to vote. In many states you had to be a property owner to vote.

  25. RickA is right about the data accumulated by telephone companies, cell phone companies, and other companies in the pursuit of their business. In those cases we are talking about records of transactions which properly belong to those entities that have allowed us to use their systems for free or for their profit.

    Credit card companies must have records of your transactions, as telephone companies must accumulate your call data. These records are necessary for their business, and the data belongs to them.