Category Archives: Fourth Amendment

Privacy march, Washington D.C, 2013. Credit: James Bovard

U.S. intelligence agencies are telling us not to worry about the FISA Amendments Act, a 2008 law that allows the NSA to tap into the communications of non-U.S. persons who are outside the U.S., even though this lawsidestepsthe Fourth Amendment as it allows the NSA to record the emails and phone calls of U.S. citizens who happen to be communicating with people overseas.

How many American citizens is the government listening in on? We dont know, as the intelligence agencies told Congress they cant say just how many American citizens theyve eavesdropped on (without warrants).

Despite this, they say Congress should just renew the controversial section 702 of the Act before it expires in December; in fact, they want it to be made permanent law.

Congress would probably do this too if it wasnt for the fact that theyve recently learned their privacy is also at stake. Recent unmaskings show that even a congressmans conversations with a foreign official might go public with their names un-redacted. Then, even if the member of Congress didnt do anything wrong, what they said and whom they spoke with could quickly be taken out of context by the media outlets that root for the opposing team.

We cannot live in fear of our own intelligence community, said Sen. Rand Paul (R-KY). They have such power to suck up every bit of every transmission, every communication we ever made. We cant just have them willy-nilly releasing that to the public.

In this case Paul is not a lone gadfly. Politicians from Rep. Devin Nunes (R-CA), chairman of the House Intelligence Committee, to Sen. Dianne Feinstein (D-Calif.), arent so keen about what this law can do to them. Theyve learned that this is a new age when elected officials, not just privacy advocates, fear not just leaked facts, but innuendo and out-of-context spin from off-camera conversations or email exchanges.

Some Republicans even used a debate at a recent congressional hearing to suggest Obama administration officials had purposely unmasked elected officials and then leaked the info to harm Trump administration officials. Specifically, former National Security Advisor Susan Rice and former U.S. ambassador to the United Nations Samantha Power have been accused of unmasking Trump administration officials and expanding who could see the documents in an effort to get them to leak.

All of this is very new and confusing to our politicians. But, as fiction can gaze just beyond the headlines to show us where we are going and how we might keep our freedom in this changing world, my novel Kill Big Brother takes this plot to its dramatic end. What I found while researching and writing the book is there are ways to keep our intelligence agencies strong enough to protect us while keeping our freedom.

This begins with enforcing a change in mindset. Too often our intelligence agencies, as law enforcement will, have their eyes so fixed on the problemsterrorism, ransomware wielded by criminal syndicatesthey lose sight of the freedom they are supposed to be protecting.

So what should Congress do with Section 702 of the FISA Amendments Act?

First, they shouldnt make it permanent law, as Congress needs to revisit this issue periodically as events and technology change.

Next, Congress should require the intelligence agencies to report by specified dates how many U.S. citizens have been listened to or have had their emails viewed as a result of this provision in the lawand not just general numbers, but real data. The law sunsets in December, so Congress should use this deadline to pressure the intelligence community to get these answers now.

Congress should then update the law by setting up a legal apparatus that will help to quickly, in this modern world, give the NSA and more the ability to get approval or to, in some cases, get approval within a certain time period after the fact for listening in on communications that might include U.S. citizens. Yes, this means stripping away the NSAs ability to listen away with no checks or balances from Congress or the courts. The Fourth Amendment protections need to be respected. If technology makes it possible for the NSA to listen in on conversations,then the NSA, with all of its vast resources, can propose ways for technology to help create a fast approval and oversight process.

Civil libertarians shouldnt forget that U.S. intelligence agencies have an almost impossible task. They have to find terrorists and others who are plotting to do us harm in an age when encryption and other technologies allow even unsophisticated criminals to hide their communications. But then, history is also a teacher heresimply empowering secretive government organizations can lead to some undesirable places.

Also, encryption and other technologies have become an important part of modern commerce. There is no turning back the clock. What it comes down to is that good police work is called for, not broad new powers for a Big Brother state.

Few Americans now know that under Section 702 the FISA Amendments Act the government now collects millions of communications annually from American citizens, according to research done by The Washington Post. Part of the way the NSA does this is by temporarily copying internet traffic going in and out of the U.S. As a result, they are copying and potentially searching emails between journalists and their sources, communications protected by attorney-client privilege, and lawful conversations elected officials are having with foreigners.

Just imagine if a new Edward Snowden leaked this data, information that currently can be used in domestic criminal and civil proceedings, without a warrant. Our right to communicate privately, via Fourth Amendment protections, is paramount to our freedom; also, the First Amendment right to free speech is dampened by this lack of privacy. The U.S. intelligence agencies should be reminded that telling us to give up what they are supposed to be protecting also kills our liberty.

Frank Miniter is the author ofKill Big Brother, a novel that shows how we can keep our freedom in this digital age.

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We Can't Live in Fear of Our Own Intelligence Community | The ... - The American Conservative

Congress should sunset any extension of the intelligence communitys dubious electronic surveillance authority to intercept, store, and search the contents of international communications under section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008.

Enacted in 2008, section 702 initially sunset in 2012. Congress later extended the sunset date until December 31, 2017.

Generally speaking, a statute should sunset whenever predictable changes in technology threaten statutory obsolescence; its encroachment on liberty is unknown or uncertain; the statutes effectiveness is doubtful; the governments compliance with the statute is spotty; or, the constitutionality of the statute remains in doubt.

All five of these time-honored considerations militate in favor of a sunset date for any extension of section 702 beyond December 31, 2017.

Digital technologies are changing a warp speed. What is science fiction today is reality tomorrow.

The changes affect the ways in which international communications are conducted; and, government capabilities for intercepting, storing, and searching the contents of international communications. Indeed, section 702 responded in part to the migration of international telecommunications from satellite to fiber. The development of cloud technologies has has confounded the Stored Communications Act of 1986 as illustrated by the United States Court of Appeals decision in Microsoft Corp. v. United States.

The governments technical capabilities for intercepting, storing, and searching the contents of international communications are rapidly expanding. These pioneering technologies might easily evade limits imposed by section 702 written by Congress with an eye on 2017. Any section 702 extension should thus sunset in four years to insure against a horse-and-buggy statute governing in an age of interstate highways.

Another sunset for 702 is also prudent because of the governments professed ignorance of its to intercept or search the international communications of American citizens protected by the Fourth Amendment. At present, the government insists it is unable to distinguish between electronic communications between foreign persons located outside the United States and communications between a foreigner and a U.S. person in the United States. Thus, Congress is clueless as to the magnitude of section 702 invasions of the constitutionally protected privacy of United States citizens. This information should be known and disclosed by the intelligence community before Congress should even consider making section 702 permanent.

The effectiveness of section 702 in thwarting international terrorism or espionage is questionable. After nine years, the intelligence community has yet to document a single case in which section 702 enabled the preemption of an international terrorist act in the United States. Former National Security Agency official and renowned expert Bill Binney has opined that the NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant. NSA analysts are theoretically tasked with reviewing 40,000 to 50,000 questionable records each day. If section 702 is largely irrelevant to frustrating international terrorism, it amounts to a massive invasion of privacy for its own sakean illicit government objective.

The government has commonly violated section 702 surveillance limitations. Illustrative but far from exhaustive was the April 26, 2017 FISC decision authored by Judge Rosemary Collyer sharply rebuking the intelligence community for illegal surveillance of American citizens over a five-year period which raised very serious constitutional questions. These chronic violations also argue against any permanent extension of section 702.

Finally, the section seemingly authorizes dragnet, warrantless interceptions and searches of the contents of the international communications of American citizens in violation of the Fourth Amendment. The statute does not require any suspicion that citizens whose communications are seized and searched are implicated in international terrorism, espionage, or other crime as a predicate for invading their communications privacy.

The United States Supreme Court has yet to address the constitutionality of section 702. Congress should refrain from giving it permanent life unless and until it receives the Courts gives imprimatur. Caution is the order of the day when skating close to the Constitutions edge.

In sum, every dictate of prudence favors a congressional four-year sunset if it decides to extend section 702 beyond December 31, 2017. That would compel a fresh and more informed congressional examination of the statute after the 2020 presidential election.

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Sunset any Extension of Electronic Surveillance Authority - HuffPost

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal WisBar All things considered, Blackman's consent to the blood draw was not voluntary and free, and was not an unconstrained choice, it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment, Abrahamson wrote.

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Blood Test Suppressed: Police Misinformed Driver on Consequences of Refusal - WisBar

In March, U.S. Magistrate Judge Dustin Pead recommended that the state be ordered to comply with the subpoena.

"ACLU's arguments are akin to a criminal defendant suggesting that the federal government must seek a warrant to obtain a defendant's records from local police," wrote Pead wrote.

In its objection to Pead's ruling, ACLU attorneys called that comparison off target. Though the ACLU is not a party to the case, it is an intervenor that joined the litigation.

"A better analogy would be to the contents of students' private emails stored on a state university's servers; though such files are held by a government entity, surely that fact alone does not divest them of protection under the Fourth Amendment," the group wrote in a court filing. State officials objected to Pead's recommendation, pointing to ACLU's reasoning.

On Thursday, U.S. District Judge David Nuffer's order settled the issue saying that the state's capacity to challenge the subpoena on grounds of violating 4th Amendment protections against unreasonable searches and seizures is "limited" because neither the state nor the ACLU represent "individual patient or prescriber interests."

States cannot take on the role of protecting citizens' rights against the federal government, Nuffer wrote, because that role will be taken on by the federal government when appropriate. A supremacy clause requires state law to "give way" to the federal law when the two are in conflict of one another.

The prescription drug industry is "highly regulated," Nuffer said, and an expectation of privacy from patients and prescribers may have in the database "is not reasonable."

The subpoena from the DEA is legal, Nuffer added, because it requests records for one specific physician for a limited time period who is under investigation.,

Although Pead recommended the state be ordered to comply "immediately," Nuffer gave the Utah Department of Commerce and Utah Division of Occupational and Professional Licensing three weeks to comply or be held in contempt of court.

If the state files an appeal, it can apply for a stay in the case.

Marina Lowe, a spokeswoman for the ACLU, on Friday expressed disappointment in Nuffer's ruling and said the organization is interested to see what the state's next steps are.

The case and ruling help "identify this challenge" of seeing how the 4th Amendment applies to a modern way of life heavily influenced by technology, Lowe said.

She added that Nuffer's explanation of his ruling seems to classify the release of private medical information as "just a risk one acknowledges when going to see a doctor."

This reasoning would means that a person "seeking potentially life-saving treatment" has to decide whether to "sacrifice my health or my privacy," Lowe said.

"I hope it's not the end of the road, and I certainly don't think it's the end of the road," Lowe said.

Read the rest here:
Federal judge orders Utah to turn over prescription drug database to DEA - Salt Lake Tribune

ANALYSIS/OPINION:

Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. It should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.

Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period; no commas, semicolons, or question marks. The murderous abominations of the 9/11 terror attacks changed nothing on that score.

The Supreme Court admonished in Ex Parte Milligan:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism

As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy.

In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness.

Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):

The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The American Revolution was ignited by opposition to hated British Writs of Assistance, general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter, but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.

Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.

The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.

The government has employed section 702 to collect more than 250 million internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high-level NSA official and perhaps the foremost expert in the world on electronic surveillance:

When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets from the metadata analysis get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.

The intelligence community is clueless as to how many of the 250 million annual internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crime a second Fourth Amendment transgression.

Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The high court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.

Title III wiretap orders under the Omnibus Crime Control Act are vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.

In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution.

In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.

Even if no warrant were required under the Fourth Amendment for the seizure, storage and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test.

While the government interest in national security is of the highest order, Section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.

Proponents of extending Section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In sum, Section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.

The Fourth Amendment is too important to be left to the intelligence community.

__

[This is the first of a series of articles on extending Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 scheduled to expire December 31, 2017]

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Section 702 surveillance should not be extended until the Fourth Amendment is honored - Washington Times

Police militarization and excessive force have become increasingly pressing issues in American society. Fortunately, the Denver-based U.S. Court of Appeals for the Tenth Circuit Justice Neil Gorsuchs old stomping ground held yesterday that innocent victims of improper police procedures during dynamic drug raids have some protections. Even if the court didnt fully address the issues Cato raised in our brief, the ruling in Harte v. Board of Commissioners of Johnson County, Kansas is a step forward.

In 2011, Robert Harte and his two children visited a garden store to buy tomatoes for his 13-year old sons school project. Little did they know that Sergeant James Wingo of the Missouri State Highway Patrol was watching the store and recording the license plate numbers of the visitors, assuming that they were there to buy marijuana despite little evidence for that assumption. The Johnson County Sheriffs Office then examined the Hartes trash on two occasions, finding about an ounce of saturated plant material. Because they evidently couldnt tell the difference between tea and marijuana, they field-tested the substance, which tested positive for marijuana.

In an inspiring display, the police launched a military-style raid the Hartes home. At 7:30 in the morning, they pounded on the Hartes door, forced Mr. Harte to the ground when he answered, and searched their home for three hours. As it became increasingly clear that there was no marijuana in the house, the police started to search for any kind of criminal activity, a far greater sweep than what a warrant to search for marijuana and drug paraphernalia allows. Heaping further indignities on the family, the officers also left canine units in the house longer than necessary to give them extra training. The police apparently wanted to turn lemons into lemonade by retroactively turning an early-morning drug raid that didnt find any drugs, lest we forget into a training exercise.

After the district court granted summary judgment for the police, the Hartes appealed and Cato filed an amicus brief. We arguedthat the police violated an important Fourth Amendment rule that goes back to the roots of English common law by failing to knock and announce their presence in anything but a literal sense. They also exceeded the scope of their warrant to look for any criminal activity instead of just drugs. We urged the Tenth Circuit to reverse the district court, clarify the Fourth Amendment standard for assessing police raids, and remand for further proceedings.

The Tenth Circuit mostly agreed with Cato on the Fourth Amendment issue. Two judges on the three-judge panel found that the district court had been wrong to grant summary judgment to the police on the search and seizure issue, with Judge Carlos Lucero alluding briefly to the knock-and-announce requirement. It was a convoluted opinion that took a long time to produce because of each judge writing separately and different sets of judges coming together on different parts of the ruling. Most importantly, Judge Gregory Phillips, joined by Judge Lucero, found that what the deputies learned early on in the search dissipated any probable cause to continue searching.

Ultimately, the judges only discussed in passing the police-militarization and general-warrant concerns raised by Cato and sided with the police on the excessive-force claims. Nevertheless, the court held that what the Hartes experienced qualified as unreasonable search and seizure and also let them continue with their state-law claims soHarte v. Board of Commissionersrepresents a positive development in the jurisprudence surrounding dynamic police raids.

The rest is here:
When Police Misread Tea Leaves They Violate the Fourth Amendment - Cato Institute (blog)

Dan Levy/Billy Penn

A memo from the beleaguered Attorney General targets a grant thats meant more than $5 million to the city.

Jul 26 2017 11:00 am

Philadelphia officials are reviewing new federal guidelines that could strip the city of some funding because of its sanctuary city policy.

Attorney General Jeff Sessions issued a memo Tuesday detailing new regulations for cities that apply for the Edward Byrne Memorial Justice Assistance Grant Programs, a Department of Justice program that provides funding to law enforcement agencies across the country to support a broad range of needs to prevent and control crime.

Over the last three years, the City of Philadelphia has received $5.1 million as part of the grant program, with $1.67 million of that coming in FY 16. Its unclear how much the city will request for FY17, if it requests funding at all.

Saying so-called sanctuary policies make all of us less safe, Sessions memo details new regulations for FY 17 recipients of the grant:

Those regulations, specifically the latter, appears to be at odds with the citys current sanctuary city policy (administration officials prefer the title Fourth Amendment City). Under current policy, law enforcement in the city of Philadelphia will not detain undocumented immigrants at the request of federal immigration officials unless the person is a convicted violent criminal or federal officials produce a criminal warrant.

City spokeswoman Lauren Hitt said Wednesday morning that the administration just saw the new conditions for the first time last night and is still reviewing with our outside legal counsel exactly what the new conditions entail and what our options are.

In March 2016 under the Obama administration, Department of Justice officials notified recipients of the grant including the city of Philadelphia that in order to keep the grant, jurisdictions would need to comply with an existing federal statutethat prohibits putting restrictions on communication between local agencies and federal immigration officials. City officials contend their policy does comply with federal law.

President Donald Trump campaigned on stripping away federal funding from sanctuary cities, though Mayor Jim Kenneyhas remained resolute when it comes to Philadelphias status.

First of all, weve changed the name from sanctuary city to the Fourth Amendment city,Kenney toldThe Inquirer after Trumps win in November.We respect and live up to the Fourth Amendment, which means you cant be held against your will without a warrant from the court signed by a judge. So, yeah, we will continue to be a Fourth Amendment city abiding by the Constitution.

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What Jeff Sessions' latest sanctuary cities funding threat could mean for Philly - Billy Penn

WisBar

Drunk Driver Gave Consent, Blood Test was Voluntary, Supreme Court Says WisBar Two justices agreed that Brar expressly consented but did not join the conclusion that his implied consent was sufficient for Fourth Amendment purposes. Two other justices dissented, concluding that Brar did not freely and voluntarily consent to a ...

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Drunk Driver Gave Consent, Blood Test was Voluntary, Supreme Court Says - WisBar

Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment WisBar The majority concluded that police possessed a bona fide community caretaker justification for impounding the car and thus were not required to obtain a warrant despite the constitutional Fourth Amendment right against unreasonable seizures.

Read this article:
Supreme Court: Vehicle Impoundment Did Not Violate Fourth Amendment - WisBar

Section 702 of the Foreign Intelligence Surveillance Act Amendments of 2008 (FAA) authorizes the government to seize and search the international communications of American citizens without probable cause or warrants in violation of the Fourth Amendment. Section 702 should not be extended beyond its current expiration date of December 31, 2017 unless Congress cures its constitutional infirmity.

Members of Congress are bound by oath or affirmation to uphold and defend the Constitution period, with no commas, semicolons, or question marks. The 9/11 murderous abominations changed nothing on that score. The Supreme Court admonished in Ex Parte Milligan:

The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism

As a cornerstone of our liberty-centered constitutional universe, the Fourth Amendment makes citizen privacy the rule and government encroachments the exception. Warrants issued by neutral magistrates based upon probable cause with particularized evidence that crime is afoot are ordinarily required to justify government invasions of privacy. In the narrow circumstances that excuse warrants, a government search or seizure must still satisfy a standard of reasonableness. Justice Louis D. Brandeis elaborated in Olmstead v. United States (dissenting):

The makers of our Constitutionsought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

The American Revolution was ignited by opposition to hated British Writs of Assistance or general search warrants that empowered every petty colonial official to rummage through homes or businesses in search of smuggled goods. An address by William Pitt the Elder to the British Parliament thundered throughout the colonies, and epitomized the spirit of the Amendment:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storms may enter, the rain may enter,but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement.

Speaking through Justice Antonin Scalia, the Supreme Court decreed in Kyllo v. United States that the Fourth Amendment today should be interpreted should be adapted to secure that degree of privacy against government that existed when the Fourth Amendment was adopted notwithstanding staggering advances in technology. At that time, government encroachments on privacy were minimal. Federal criminal laws were few. Investigations were minimal. And no intelligence community existed to snoop on Americans to gather foreign intelligence.

Section 702 authorizes invasions of citizen privacy orders of magnitude beyond the degree of privacy that existed when the Fourth Amendment was ratified in 1791. It empowers the National Security Agency singly or in conjunction with sister intelligence agencies to intercept, store, and search the international communications of U.S. persons with a targeted communicant reasonably thought to be located outside the United States and in possession of foreign intelligence information.

The Foreign Intelligence Surveillance Court (FISC) does not review each discrete NSA interception to insure the target is a foreigner outside the United States or that the communications intercepted relate to foreign intelligence, including international terrorism. Instead, the FISC simply approves annually surveillance procedures that the Attorney General and Director of National Intelligence certify are calculated to target only foreigners located abroad for foreign intelligence purposes. The latter is broadly defined to include any information that relates to the foreign affairs of the United States.

The government has employed section 702 to collect more than 250 million Internet transactions annually as of 2011, which includes communications between two foreigners as well as those involving a U.S. person. According to an affidavit of Bill Binney, former high level NSA official and perhaps the foremost expert in the world on electronic surveillance:

When I was at the NSA, each analyst was theoretically required to review 40,000 to 50,000 questionable records each day. The analyst gets overwhelmed, and the actual known targets -- from the metadata analysis -- get ignoredThe NSA cannot identify future terrorism because 99.9999% of what it collects and analyzes is foreseeably irrelevant.

The intelligence community is clueless as to how many of the 250 million annual Internet warrantless interceptions under section 702 involve the international communications of U.S. persons. But the Fourth Amendment vice does not cease after the seizures. The communications are typically stored for at least five years and searched without warrants or probable cause for either to discover foreign intelligence or evidence of crimea second Fourth Amendment transgression.

Supreme Court decisions establish that the government must obtain a warrant that satisfies the Fourth Amendment to intercept or search the contents of communications of U.S. persons for either criminal justice or domestic security purposes. The High Court has not approved an exception when the communications are seized and searched pursuant to section 702 for law enforcement or foreign intelligence purposes.

Title III wiretap orders under the Omnibus Crime Control Act is vastly less intrusive on privacy. They require a warrant that satisfies the Fourth Amendment by specifying the phone line to be tapped, the conversations to be seized, and the crime under investigation. Moreover, reasonable measures must be taken by the government to avoid recording innocent conversations. And the targets of the warrants and their communicants are typically notified of the wiretap within 90 days of its termination to enable them to challenge its legality.

In contrast, surveillance under section 702 does not require a warrant. It does not require probable cause. It does not require suspicion of criminality. It is not confined to communications involving only foreign powers or their agents. There is no mechanism for monitoring the seizure of the communications to exclude those portions irrelevant to foreign intelligence. And the communicants whose conversations are intercepted, stored, and searched are not notified of the invasions of privacy unless they are lead to a criminal prosecution. In the vast majority of cases, U.S. persons will never learn that the privacy of their international communications had been compromised.

Even if no warrant were required under the Fourth Amendment for the seizure, storage, and search of the international communications of U.S. persons under section 702, it would still fail the reasonableness test. While the government interest in national security is of the highest order, section 702 sweeps far more broadly to include anything relevant to the foreign policy of the United States, for example, the emission of greenhouse gases or free trade agreements. It also authorizes searches of citizen communications for crimes unrelated to national security and not based on probable cause. And as Bill Binneys affidavit underscored, the stupendous volume of communications capture by section 702 cripples the NSAs ability to separate the wheat from the chaff.

Proponents of extending section 702 argue that government officials have refrained from using its alarming powers to oppress U.S. persons. But as Thomas Jefferson advised, In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. Moreover, Justice Brandeis correctly taught that, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

In sum, section 702 should not be extended unless it requires a warrant to seize or search international communications of U.S. persons based upon probable cause to believe they contain evidence of international terrorism and with particularity describe the means of seizing or searching the communications. Further, U.S. persons should be notified within 90 days of any interception or search.

The Fourth Amendment is too important to be left to the intelligence community.

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Section 702 Surveillance Authority: No Extension Unless Fourth Amendment Honored - HuffPost