It is the best of times for government snooping and surveillance.
It is the worst of times for privacy and the Fourth Amendment.
The surveillance state should be dismantled, and the right to be let alone should be restored as the glory of the Republic.
This paper explains why and how.
Why Privacy Matters
The right to be let alone from government snooping or surveillance is the most cherished right among civilized peoples.
Privacy encourages creativity and spontaneity. It facilitates growth, learning, and maturation through a process of trial and error without risk of embarrassment.
Supreme Court Justice Louis D. Brandeis elaborated in Olmstead v. United States, 277 U.S. 438 (1928) (dissenting opinion):
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought 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.
Privacy is a cornerstone of a Republic where the people censure government; government does not censure the people. Consider the following.
No person on paper is clean.
Citizens will refrain from exposing and criticizing government fraud, waste, abuse, or lawlessness if they fear the government will retaliate by disclosing or sharing negative or embarrassing information from dossiers assembled through indiscriminate surveillance. They will become docile — a great menace to freedom according to Justice Brandeis in Whitney v. California, 274 U.S. 357 (1927) (concurring opinion). Edward R. Murrow, the scourge of Senator Joseph McCarthy (R-WI) similarly observed: “A nation of sheep will beget a government of wolves.”
Privacy was the spark of the American Revolution.
The urgency of citizen scrutiny of government has heightened as the size of government has grown from a small acorn in 1790 with a budget of less than $10 million and a few employees to a giant oak in 2017 with a budget exceeding $4 trillion and millions of employees. Further, Congress has virtually ceased to exercise oversight because of institutional sloth and incompetence coupled with a craving to escape responsibility. The Pentagon alone cannot account for a staggering $3 trillion in expenditures. Congress has become an invertebrate branch, which has created a corresponding need for fearless citizen criticism of government.
Privacy was the spark of the American Revolution. In 1761, James Otis denounced British Writs of Assistance. They empowered every petty official to rummage through homes and businesses in search of contraband or smuggled goods. He amplified: “It is a power that places the liberty of every man in the hands of every petty officer.” John Adams chronicled: “Then and there the child of independence was born . . .”
In 1763, William Pitt the Elder spoke against an excise tax on cider to the British Parliament in words that thundered throughout the American colonies: “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.”
The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government.
The Fourth Amendment was ratified to enshrine the right to be let alone as a constitutional imperative. Its protections do not depend on the outcome of any election or the spasms of public opinion frightened by terrorist attacks. As World War II raged, Supreme Court Justice Robert Jackson sermonized in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
The Fourth Amendment intentionally creates barriers to law enforcement and a risk-free existence by delimiting the power of government to conduct searches and seizures that disturb privacy. It provides:
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.
Accordingly, the government must ordinarily obtain a warrant from a neutral magistrate based on probable cause and particularized suspicion of crime before individual privacy may be upset. In circumstances in which a warrant is not constitutionally mandated, searches and seizures must nevertheless satisfy a “reasonableness” standard.
The Constitution was intended to endure for the ages. Its authors knew that unforeseen changes in technology or otherwise would require atextual interpretations to honor the Constitution’s purposes. They understood, like St. Paul in 2 Corinthians 3:6, that “the letter killeth, but the spirit giveth life.” Thus, Chief Justice John Marshall observed in McCulloch v. Maryland, 17 U.S. 316 (1819) that the Constitution “was intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.”
The Fourth Amendment was ratified to prevent governmental evil — even at the expense of handicapping law enforcement.
The Supreme Court has instructed that the Fourth Amendment should be interpreted to safeguard privacy expectations despite vast changes in government surveillance technologies and capabilities that are no less robust than the privacy expectations of the citizenry in 1791 when the Amendment was ratified.
In Kyllo v. United States, 533 U.S. 27 (2001), the Court held that the warrantless use of a thermal-imaging device aimed at a private home violated the Fourth Amendment. Writing for the majority, Justice Antonin Scalia amplified:
While it may be difficult to refine the Katz [reasonable expectation of privacy test] when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences are at issue, in the case of the search of the interior of homes — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search — at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.
Emails or text messages in the Age of the Internet are the functional equivalent of letters in 1791, and should thus command the same protection under the Fourth Amendment. And as to the latter, Justice Stephen J. Field declared in Ex Parte Jackson, 96 U.S. 727 (1877):
The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. The difficulty attending the subject arises, not from the want of power in Congress to prescribe regulations as to what shall constitute mail matter, but from the necessity of enforcing them consistently with rights reserved to the people, of far greater importance than the transportation of the mail. In their enforcement, a distinction is to be made between different kinds of mail matter,— between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlet , and other printed matter, purposely left in a condition to be examined. Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household.
Premium protection of privacy according to constitutional mandates does not mean weak government. Justice Jackson explained in West Virginia State Board of Education, supra:
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government.
The Constitution’s framers knew from thousands of years of recorded history that the greatest dangers to liberty emanate from government, not private miscreants, criminal organizations, or non-state actors like al Qaeda. The industrial scale slaughters of the Canaanites and Amalekites chronicled in the Old Testament are emblematic. In more recent times, the Third Reich, the Soviet Union, and Communist China have been complicit in genocide or crimes against humanity that have killed up to 200 million. Unlike private parties or non-state actors, government enjoys a monopoly of legalized violence and the power to tax and to conscript, which facilitates repression on a vast scale. The Fourth Amendment was ratified to prevent this government evil — even at the expense of handicapping law enforcement.
The Constitution — including the Fourth Amendment — is premised on the belief that accepting the risk of being the victim of injustice is morally superior to risking complicity in it. Thus, the due process clause requires proof beyond a reasonable doubt and jury unanimity for a criminal conviction. That standard means some guilty persons will escape punishment and be released with a risk of recidivism. But it also means a diminished risk of convicting the innocent and implicating the entire society in injustice. Justice John Marshall Harlan explained in In re Winship, 397 U.S. 358 (1970) (concurring opinion): “I view the requirement of proof beyond a reasonable doubt in a criminal case as bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”
Even with the reasonable doubt standard, an alarming number of innocent defendants are convicted. According to the Innocence Project, there have been 333 post-conviction DNA exonerations alone since 1989. Of that number, 20 had served time on death row. On average, each innocent defendant had served 14 years in prison.
It is probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons.
The Fourth Amendment’s reasonableness standard circumscribes government searches and seizures despite the impairment to effective law enforcement. The reasonableness standard is first cousin to the reasonable doubt standard in criminal prosecutions. It is founded on the philosophical principle that it is better to protect the right to be let alone when there is no government showing of a compelling need than to apprehend and punish all criminals. The Fourth Amendment knowingly accepts the risk that some criminals will escape detection that unfree peoples do not because it prefers liberty to a futile quest for a risk-free existence.
Investigations of crime through searches or seizures encroach on liberty irrespective of whether a criminal charge is forthcoming.
The target must retain an attorney at substantial expense to protect against false suspicions or accusations. The investigation, simpliciter, makes the target socially or professionally radioactive — leading to ostracism, the loss of income, family strife, or worse. In the Age of the Internet, the target’s reputation may be irreparably blemished. False and defamatory statements emerging from an investigation are impossible to scrub from the electronic grid. There are countless Richard Jewells of the world of less notoriety.
The percentage of investigations that lead nowhere and thus gratuitously invade privacy is unknown. But clues are available from the Federal Bureau of Investigation’s assessment data. From 2009–2011, the Bureau opened 42,888 assessments of persons or organizations seeking signs of terrorism or espionage. A database search In May 2011 showed that 41,056 of the assessments had been closed without result, and that 1,986 had progressed to preliminary or full investigations — a false positive rate of over 95%. During that period, 39,437 assessments were initiated seeking signs of ordinary criminal activity, and 36,044 had been closed without result, while 1,329 had progressed to preliminary or full investigations — a false positive rate approaching 97%.
The Supreme Court’s crabbed interpretations of the Fourth Amendment have made privacy subservient to highly speculative claims of law enforcement and national security.
It is thus probable that the vast majority of criminal investigations that materially encroach on privacy target innocent persons. No law awards them compensation for the government’s invasion of their privacy and probable permanent loss of a livelihood.
In light of these considerations, the Fourth Amendment or complementary federal or state statutes should prohibit any government search or seizure that materially encroaches on the right to be let alone unless the encroachment furthers a compelling government interest and does so with techniques least disturbing to privacy. Search warrants that satisfy the Fourth Amendment should ordinarily not be utilized unless there is probable cause to believe that very serious criminal activity is afoot, not trivial crimes like marijuana possession or use.
The Withering Away of Privacy
The right to privacy has withered since 1791.
Federal criminal prohibitions have proliferated from a handful in 1790 to thousands today. Each prohibition provides a new government justification for invading privacy in the name of law enforcement. A study by the Federalist Society found that by 2007 the United States Code contained more than 4,450 criminal offenses.
Further, a growing number of federal crimes impose strict liability with no mens rea. They justify investigations with no suspicion that the target acted with a guilty mind.
Additionally, the government began the dragnet collection of foreign intelligence as the United States changed from a republic to a global empire. Foreign intelligence is virtually limitless in scope and generally shielded from legal accountability through the Executive Branch’s invocation of state secrets.
Technology has advanced by leaps and bounds that enable ever-greater government encroachments on privacy, for instance, the interception, retention, and search of every phone or email communication at relatively modest cost.
Finally, the Supreme Court’s crabbed interpretations of the Fourth Amendment — including the third party doctrine — have made privacy subservient to highly speculative claims of law enforcement or national security.
The Proliferation of Federal Criminal Prohibitions. Under the Constitution, there are no federal common law crimes, as the Supreme Court declared in United States v. Hudson, 11 U.S. 32 (1812). Federal crimes are creatures of statutes. The first was the Crimes Act of 1790. It created but a handful of offenses, for instance, misprision of treason, piracy, or counterfeiting.
No Department of Justice or Federal Bureau of Investigation was then created for law enforcement, which was largely ad hoc in response to private complaints.
At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately.
In 1791, privacy was tightly safeguarded against federal intrusions. Yet public safety was not compromised. The federal government scrupulously respected privacy for nearly a century after its beginning. The Supreme Court initially confronted Fourth Amendment claims in Ex Parte Jackson, supra, and Boyd v. United States, 116 U.S. 616 (1886). During the previous decades, crime was not a political issue in a single federal election campaign for the House, Senate, or presidency.
The presidency of Theodore Roosevelt inaugurated the federal regulatory state with the Pure Food and Drug Act of 1906 and Hepburn Act of 1906. Then came the Harrison Narcotics Act of 1914, the Prohibition Era, and the New Deal. By 1940, then Attorney General Robert Jackson was warning:
What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.
If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes being unpopular with the predominant governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself. (“The Federal Prosecutor,” address delivered by Robert H. Jackson, April 1, 1940)
During the 75 years that have elapsed since the Attorney General’s address, the problem of investigative or prosecutorial abuses which cripple privacy has intensified. At present, the number of federal criminal prohibitions are too numerous and scattered to count accurately. Renowned attorney Harvey Silverglate authored Three Felonies A Day in 2009. It chronicles the octopus-like expansion of the federal criminal law and corresponding law enforcement abuses portended by Jackson.
At present, the Department of Justice budget approximates $30 billion annually, a sum which supports more than 100,000 law enforcement personnel.
Federal Strict Liability Offenses. The federal regulatory state features a growing number of strict liability or public welfare offenses in which an innocent mind is no defense. Violations of the federal wire fraud statute or the Marine Mammal Protection Act are illustrative. Wade Martin was convicted under the latter act for selling sea otters to a person whom he mistakenly believed was a native Alaskan.
These types of crimes were unknown when the Fourth Amendment was ratified. Justice Robert Jackson explained the strong common law presumption of an evil intent combined with an evil act to satisfy the threshold for criminality in Morissette v. United States, 342 U.S. 246 (1952):
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil . . . Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a “vicious will."
The growth of strict liability offenses in the regulatory state further lowers the barriers to the initiation of government investigations that encroach upon privacy.
Foreign Intelligence. With the post-World War II transformation of the United States into a global power and the Cold War, the President commenced the collection of foreign intelligence without warrants or congressional oversight based upon an unbounded interpretation of Article II. At present, pursuant to Executive Order 12333, the government gathers foreign intelligence on the President’s say-so alone both domestically and abroad. The definition of foreign intelligence is sweeping, i.e., “information relating to the capabilities, intentions and activities of foreign powers, organizations or persons, but not including counterintelligence except for information on international terrorist activities.”
Foreign intelligence is also collected by the President within the United States under the Foreign Intelligence Surveillance Act, as amended.
The volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.
Internet communications are intercepted, retained, and searched without probable cause to believe crime or international terrorism is afoot. The magnitude of citizen privacy invaded under the Executive Order is unknown because its implementation is cloaked in secrecy, and the government cannot be trusted to volunteer the truth. The Director of National Intelligence, James Clapper, for instance, lied to the Senate Intelligence Committee under oath in denying that the National Security Agency was collecting data against millions of Americans.
Making reasonable inferences from the disclosures of Edward Snowden, the volume of foreign intelligence collected by the government against United States persons is probably beyond ordinary human comprehension.
Technology. The development of technology since the ratification of the Bill of Rights has armed the government with unprecedented tools or instruments for invading privacy. They include wiretapping, surveillance drones, electronic surveillance, DNA collection, facial recognition equipment, thermal-imaging instruments, and instantaneous, inexpensive retrieval of information from vast databases. Supreme Court Justice Sonia Sotomayor amplified in United States v. Jones, 565 U.S. __ (2012) (concurring opinion):
GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) (“Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on”). The Government can store such records and efficiently mine them for information years into the future. Pineda-Moreno, 617 F. 3d, at 1124 (opinion of Kozinski, C.J.). And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: “limited police resources and community hostility,” Illinois v. Lidster, 540 U.S. 419, 426 (2004).
Supreme Court Decisions. The law is generally backward-looking and tardy in responding to new technology. Nearly forty years elapsed before the Supreme Court in Katz v. United States, 389 U.S. 347 (1967) corrected its erroneous holding in Olmstead v. United States, supra, that conversations were outside the protection of the Fourth Amendment.
Katz established a reasonable expectation of privacy standard to inform Fourth Amendment interpretations. But the Court soon rendered the standard toothless in a pair of decisions divorced from reality.
In United States v. Miller, 425 U.S. 435 (1976), the Court held that the Fourth Amendment is inapplicable to a customer’s bank records that are subpoenaed by the government for the purposes of criminal prosecution. Writing for the Court, Justice Lewis Powell explained:
The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. United States v. White, 401 U.S. 745, 751–752 (1971). This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
In Smith v. Maryland, 442 U.S. 735 (1979), the Court similarly held that a phone subscriber had no reasonable expectation of privacy in his dialed phone numbers because they were knowingly shared with the phone company. Thus, the Fourth Amendment did not apply to the government’s suspicion-less use of pen registers in the investigation of crime. Justice Harry Blackmun amplified:
When he used his phone, [the subscriber] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.
Both Miller and Smith are wildly misconceived. Everyone possesses a reasonable expectation that sensitive or confidential information shared with intimates or businesses for benign, professional, or narrow purposes will not be provided to the government. It has the motive and ability to imprison or otherwise harm you. Internet users share email content with internet service providers without any expectation that the National Security Agency will be privy to the communication. The same can be said, for text messages known to phone companies in the ordinary course of business. But under Miller and Smith, the Fourth Amendment leaves unprotected the contents of every email or text message communication in the United States. The NSA is defending the constitutionality of its bulk collection, retention, and search of telephony metadata regarding every phone call in the United States by relying on Miller and Smith.
Restoring the Right to Be Let Alone
Congress should not tarry in the enactment of legislation that rolls back the staggering encroachments on the right to be let alone that have transpired since the ratification of the Fourth Amendment in 1791.
Atop the agenda should be a Privacy Protection Restoration Act (PPRA), to provide as follows:
A person may assert as a defense in any proceeding alleging noncompliance with a search warrant, subpoena, national security letter, or other government order that compliance would materially encroach on the privacy of that person or a third party unless the government proves by a preponderance of the evidence that compliance is necessary to advance a compelling government interest in law enforcement, and, that the technique for collecting the information minimally encroaches on privacy.
In determining whether compliance with a search warrant, subpoena, national security letter, or other government order would advance a compelling government interest, the court shall consider, among other things, the seriousness of the crime under investigation and documented proof that the investigatory technique to be used in obtaining the information has been substantially effective historically in preventing, deterring, or punishing crime or international terrorism.
The principles behind the PPRA should inform deliberations on pending legislation to update the obsolete Electronic Communications Privacy Act of 1986 (ECPA).
The Email Privacy Act would require the government to obtain a warrant based on probable cause to access the content of any email from an internet service provider irrespective of the email’s age. At present, ECPA restricts protection of email content to communications that have been stored for 180 days or less. That limit was held unconstitutional in United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010). Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.
Globalization was in its infancy when ECPA was enacted. Most Internet communications and storage took place within the United States. The probability of interjurisdictional conflicts over stored emails outside the United States was more hypothetical than real. Congress predictably remained enigmatic on ECPA’s application to electronic records stored in foreign lands.
Under any sensible interpretation of the Fourth Amendment, all email content of whatever age should be protected absent a warrant based on probable cause.
Three decades later, that opaqueness is unsatisfactory. Law enforcement officials in one country commonly seek access to records in another country. Whose privacy laws apply? The issue has jumped to the forefront because of United States v. Microsoft. In that case, the Department of Justice sought to compel Microsoft to produce emails located on servers in Dublin, Ireland. But the United States Court of Appeals denied that the Storage Communications Act granted that authority. The case might reach the United States Supreme Court.
During the last Congress, a bill known as LEADS would have addressed the issue in the following way.
The government would be authorized to use a warrant to compel production of electronic communications stored abroad if it concerned a United States citizen. There is nothing irregular about extraterritorial application of United States laws to the activities of its citizens. Congress, for instance, has criminalized foreign travel to engage in illicit sex (18 U.S.C. 2423).
The LEADS authorization, nevertheless, would have been worrisome. Reciprocity is the norm on the international stage. If the United States can gain access to information about United States persons stored in China or Russia, we would be required as a matter of comity to permit those countries to obtain access to electronic information about their citizens stored in the United States. Since both China and Russia are lawless nations, their governments can be expected to employ this power to persecute dissidents or otherwise violate human rights. In other words, LEADS’ authorization to use search warrants to retrieve information about United States citizens stored abroad may be a cure worse than the disease.
How important are such search warrants to law enforcement?
At present, we are clueless. Such warrants may be vital or marginal to the investigation of serious crimes. A legislative precedent should not be created that would assist persecution of Chinese or Russian dissidents unless it satisfies a very high threshold of urgency.
We cannot take the government’s law enforcement claims at face value. The government insisted that three counterterrorism laws that have slumbered from birth were imperative: the Alien Terrorist Removal Procedures, Section 412 of the Patriot Act, and the lone-wolf amendment to the Foreign Intelligence Surveillance Act. They have never been used.
Authoritarian governments can be expected to employ reciprocal power to persecute dissidents or otherwise violate human rights.
Congress should thus prohibit the use of search warrants extraterritorially unless the Executive provides hard, nonspeculative evidence that the authority is necessary in a significant number of cases to prosecute significant crimes. The privacy of United States citizens should not be compromised absent demonstration of a compelling government need.
LEADS would have authorized an internet service provider to resist a search warrant’s use extraterritorially by proving that compliance would violate the laws of a foreign country to the issuing tribunal. But United States courts are amateurs in the interpretation of foreign laws. They would be prone to error absent expert testimony. And years could be consumed in litigating appeals of trial court decisions, which frequently would prove fatal to the investigation. The LEADS game for extraterritorial use of search warrants is probably not worth the candle.
Unless much more convincing evidence of law enforcement need is forthcoming, legislation should prohibit the use of search warrants extraterritorially to obtain electronic communications about United States citizens. That would avoid setting a precedent that would assist China, Russia, or other lawless nations in persecuting their dissidents without material offsetting benefits to United States law enforcement.
The United States would not go dark abroad without the use of search warrants extraterritorially. We have more than 50 Mutual Legal Assistance Treaties with other countries that facilitate the voluntary sharing of evidence and information in criminal cases or other government investigations. The MLAT process can be employed whether or not the information sought concerns a citizen or foreigner. It satisfies customary standards of international comity and avoids interjurisdictional conflicts. But new legislation can make the MLAT process more efficient and transparent.
Privacy is the cornerstone of a flourishing democratic dispensation that celebrates a liberty-centered universe. It has withered over the years succumbing to inflated claims of law enforcement or national security.
Congress should restore privacy as the crown jewel of the nation by enacting a Privacy Protection Restoration Act to impose a heavy burden on the government to justify every material encroachment on privacy. If Congress does nothing, privacy is destined to crucifixion on a national security cross.