For those of you who have been following – the Senate has approved the new Telecom Immunity and New Eavesdropping Rules.
This looks like a prima facie violation of the fourth amendment. If anyone out there can explain to me why it’s not, I’d like to hear it.
If I had to defend the constitutionality of it, I’d probably try and get some wiggle room out of the phrasing of the fourth.
“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.”
It seems like there is at least room for a strict constructionist to argue that information acquired by eavesdropping isn’t seized. Since the wiretapping in question is being done without the issuing of warrants, it seems like there is a loophole to avoid any worries from the second half of the amenedment.
The weird thing is that one might be forced to concede a central point of that argument given a relatively popular stance on why filesharing isn’t the same as theft. It is effectively the same sort of breakdown in the attempt to use the physical property model when it comes to information.
Presumably, though, just as the government shouldn’t be allowed to sidestep the 8th amendment by instituting cruel and unusual treatments for some reason other than punishment, they can’t avoid the fourth’s requirement to require justification for the issuance of a warrant by just skipping over the warrant issuing process entirely.
In other words, I don’t buy the above argument, but it seems like a possible route to go for arguing the constitutionality of the law.
Good try, Lewis, but eavesdropping/wiretapping=seizure. See, e.g., Katz v. United States, 389 U.S. 347 (1967). The ACLU and some other constitutional-loving folks have sued some constitutional-hating people, including Attorney General Mukasey, over the FISA Amendments Act (“FAA”) of 2008, asserting violations of the First and Fourth Amendments and separation of powers.
I’m a civil and human rights attorney. I already suspect that my office and home phones are tapped (I’ve heard the clicking). With the FAA in place, at least now I KNOW that my phone conversations with my clients in other countries are monitored.
I don’t suppose the Bush Administration’s claims of, “Because, that’s why!” sway you?
I think the key point is the “probable cause.” The Bush Administration and anybody else who supports this ludicrous bullshit claims that you won’t be spied on if you don’t have anything to hide. In their mind, the tap doesn’t get turned on unless there’s probable cause to do so. It’s a total lie, but that’s the thinking.