Liberals, Conservatives and just plain old Americans should be proud of the Fourth Amendment. You remember the Fourth Amendment, don't you. It goes something like this.
"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."
A few years ago in the shadow of 9/11, quaking with fear, we enacted the US Patriot Act. Among other things that act allows the FBI to issue what are called "national security letters." A "national security letter" is like a warrant without the need for a judge. According to a letter to the editor of the Washington Post in the period between 2003 and 2005 the FBI issued more than 140,000 specific demands under the Patriot Act to obtain potentially sensitive information about U.S. citizens and residents. One hundred forty thousand, are there that many suspected terrorists? Well, no there aren't but the FBI can issue a National Security Letter when it is "relevant" to an investigation to protect against international terrorism or clandestine intelligence activities, provided the investigation is not based solely on the First Amendment-protected activities of U.S. citizens, permanent residents, or domestic corporations or associations.
As a practical matter the current standard means that if you have a nephew in law who is suspected of knowing somebody who went to school with a party of interest in a "terrorism" case the FBI can snoop around in your Internet records without adult supervision. I know, the lawyers reading this are going to point out that "relevant" is a stronger standard than I suggest, and an NSL can only be issued when exigent circumstances are present, but according to a recent Report of the DoJ's Inspector General outlining NSL abuses it seems without fear of being turned down by a Judge, some FBI Agents have been a little loose in their interpretation of the law. Michael Dorf reports in a FindLaw Article that
Among the problems identified by the report are: sloppy and inconsistent record keeping by the FBI, which resulted in substantial under-reporting of errors within the FBI; NSLs that were signed by personnel without proper authorization to do so; confusion among recipients of NSLs that resulted in disclosure of private information to which the FBI was not entitled; and most disturbingly, a pattern of short-circuiting the already-streamlined NSL process by improperly labeling requests as exigent in the absence of any exigency.This is an issue of importance. We have to give law enforcement the tools needed to keep us safe, but to secure our freedoms we have to make sure the use of those tools is overseen by adults. The adults contemplated by the Constitution are judges. The founding fathers were pretty smart. Maybe they were right.
