ELECTRONIC SEARCH vs. THE CONSTITUTION

Fiedor Report On the News #301 ^ | 2-9-03 | Doug Fiedor

[forest]

Back in the last century, in high school American government class, we actually had to be able to recite and discuss each of the first ten amendments to our Constitution. I still remember reciting the Fourth Amendment in class.

"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."

The important words, we learned, were that the people are "to be secure in their persons, houses, papers, and effects," against search by government agents. And, that outside of a major emergency, Government agents "shall not" violate that security for any reason whatsoever without written permission signed by a judge. Furthermore, the government agent was required to present that signed permission (warrant) to the person in question, and give them time to read it, before any action was taken.

That was what was intended by the Founding Fathers, the first Congress and what was set in the law by many court cases over the years.

Until lately, that is.

The term "persons, houses, papers, and effects" would include traffic stops. However, recent courts have determined that "momentary" traffic stops are OK sometimes because they make it easier for the police to catch people. That is 180-degrees from the intent of the Founding Fathers.

"Persons, houses, papers, and effects" would also include communications. But, police find it much more effective to "search" our private communications via telephone taps and e-mail intervention when they do not tell the person they are under investigation. That is also completely opposite to the intent of the Fourth Amendment. But, again, police expediency supersedes Constitutional niceties -- our rights.

There's yet another interesting deviation from the law today: When we are talking about records or effects, police must have a warrant "particularly describing the place to be searched, and the persons or things to be seized" before they can touch anything. That warrant must be presented to the person in control of what is to be searched or seized, and police may only take those items described on the warrant.

That was what was intended, anyway.

Today, as likely as not, government agents will take all computers -- containing all sorts of information they have no right to search or seize. Sure, they could copy off whatever the warrant states they have cause to seize and leave the rest. But, that might require a little work and some sort of expertise. So, they just take the whole computer system, with all records and personal information.

There was a time when some people kept two sets of books just to protect against that type of action by authorities. Are we now to keep two sets of computers? The problem with that is, unlike a set of books, there are usually all types of private information on a person's computer. If a few pages are involved in a crime, we agree that authorities should be able to seize the information after obtaining a warrant. But, just as authorities never confiscated a complete office before computers, so should they not now be allowed to take a whole computer today. Because, to do so opens up opportunities for all sorts of fishing expeditions -- which is what we see today.

Our computers and our private communications are today's version of our "papers, and effects." They "shall not be violated" for any reason unless a valid warrant is first signed by a judge and presented to the person controlling the information. And, that means that the warrant must be presented before the search begins and clearly state what information authorities have permission to seize.

That should, of course, include telephone conversations and e-mail communication.

Sure, that's inconvenient to the police and not the way they currently conduct investigations. So what?

Our Constitution is the supreme law of our land. Anyone in government violating it should be summarily removed from government and prosecuted. If Congress finds that our Constitution is too inconvenient and detrimental to the police powers they want public officials to have over the people, the proper course would be to attempt to amend that provision of the Constitution.

But, violating the original intent -- and, in this case, even the exact words -- of our Constitution is clearly an intentional violation of the supreme law of our land.

That should never be tolerated.

 END

[DBrow]

I share your concern here. The BofR does not specifically say that you get to be told about a warrant, but this seems a bit scary. Has this been court-tested?

Of course the most common use will be to install a key logger on your computer if they can't sneak one by your firewall, or install phone bugs and mikes.

Installing surveillance gear has always been done by clandestine breakins if they can't just get Telco to do it- but this warrant lets them come in on shaky probable cause to get real probable cause.

Thanks for the info.

[4CJ]

That durn old living document! It's over 200 years old, why should politicians and police follow it, when President H. Clinton can protect us from terrorists invading this country...

LOL! The hildabeast and the precious!

[ActionNewsBill]

Dixie Bump