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The demise of the Fourth Amendment


Is anyone besides me tired of living in a fishbowl?

I don’t mean the fishbowl created by social media (although in an unfortunate sense that is a big part of it) or by living in a small community where people know their neighbors. I mean living in a society in which our government, theoretically the defenders of the Constitution, the guarantors of the “land of the free”, routinely and with complete disrespect for its citizens reads our mail, tracks our movements and monitors our purchases. Does anyone really think this is right?

Apparently some people do. Those who want to see the whistle blower Edward Snowden hung as a traitor apparently think the government should be able to do whatever it wants, whenever it wants. If you take that argument far enough, it means they can confiscate your guns, tell you where to live and control what you say. After all, if one article of the Bill of Rights can be declared null and void by executive order, they all can.

Because of Snowden’s “traitorous” revelations, we now are just beginning to understand the scope of the government’s incursion into our private lives. Our emails are routinely monitored, encrypted websites such as our banks and our stores and our Amazon.coms have no protection against unfettered government snooping and our cell phones yield all manner of private information, far beyond just our conversations and extending into our locations at all hours of the day and night. If Kafka were alive, and Orwell, they would be screaming “We warned you!”

This destruction of the Fourth Amendment started under President George Bush right after the attacks of Sept. 11, 2001. At that point, the nation was scared and angry and ready to bring the wrath of a Christian God down on someone’s head, and we were ripe for abuses generated in the name of national security. Now, 12 years later, freedom is under a much greater threat than Osama bin Laden and al Qaeda could ever have hoped to engineer.

“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 Fourth Amendment is 54 simple words. Unlike the Second Amendment, which has fostered enormous debate about the meaning of the words, until 9/11 there was almost no dispute over the meaning of these words. Read them; they are self explanatory. Or so it would seem, until the Bush and Obama administrations got hold of them and turned them upside down.

We reported this week that Customs and Border Security agents are routinely seizing computers, tablets and cell phones at the border, without warrants, without any hint of probable cause, and mining them for the personal data they contain. The president says this is OK because the Fourth Amendment is suspended at border crossings, even for American citizens. He has said this without any serious public court review; some secret court may have endorsed this, but then we don’t know what the secret courts are ruling because, well, they’re secret.

Snowden’s material reveals that the National Security Agency is grabbing at will digitally transmitted messages and data, indiscriminately and without probable cause, in the tenuous interest of “national security.” I have some news for them: a nation is most secure when its government is acting within the rule of law.

How much freedom are we really willing to give up for the illusion of safety and security? Back in 2003, I was stunned at the apparent answer to that: lots of freedom. Now, a decade later, it has become obvious that we have given up far, far more freedom than most of us even considered possible. The only way to escape our own government’s oppression is to go as far off the grid as we can. If we eschew computers, cellular phones, land lines, cable television, credit cards, debit cards, library cards and perhaps even checks, it is very, very hard for the government to crawl into our living rooms. Look around you and tell me how many people you know have done this — or could do it.

Cell phones, computers, electronic banking and trade are nearly impossible to avoid. In some professions, such as mine, they are impossible to avoid — I could not do my job as it is now constituted without a cell phone and a computer, at the very least. The companies I do business with are pushing me away from paper in favor of digital transactions. Bucking technology is hard, and becoming harder. Yet that technology is what is letting the government peer over my shoulder at virtually everything I do. Without a warrant, without probable cause, without anyone supporting it with “oath and affirmation.”

Whether you’ve considered it or not, we need the Edward Snowdens and Wickileaks of the world. Without them, the depth and breadth of the government’s illegal snooping would not be known. And it is only that knowledge that will allow us to reclaim the Fourth Amendment. If we don’t, there is no freedom we now take for granted that can be guaranteed.

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