81st Way to Exasperate a Liberal: Characterize Probable Cause as a Burden to be Bypassed
The Fourth Amendment to the Constitution is very clear about what the United States government has to have in order to search through and seize the property, papers and personal effects of people under its jurisdiction. The government has to demonstrate probable cause:
Amendment IV. 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.
But someone testifying before the Senate Judiciary Committee yesterday finds the necessity of probable cause in government searches to be too heavy a burden. Too heavy a burden in searching for your location based on cell phone tower data:
One appropriate subject for further legislation is the legal standard for obtaining, on a prospective basis, cell tower information associated with cell phone calls. Cellular telephones operate by communicating through a carrier’s infrastructure of fixed antennas. For example, whenever a user places or receives a call or text message, the network is aware (and makes a record) of the cell tower and usually which of three pie-slice “sectors” covered by that tower
serving the user’s phone. This information, often called “cell-site information,” is useful or even critical in a wide range of criminal cases, even though it reveals the phone’s location only approximately (since it can only place the phone somewhere within that particular “cell” and sector). It is also often useful in early stages of criminal or national security investigations, when the government lacks probable cause for a warrant.
Translation: it sure would be useful for the government to figure out where people are when it doesn’t have probable cause to believe there’s any crime involved.
This certain someone also thinks that probable cause is too heavy a burden to search through your e-mail and find out who you’ve been writing:
Moreover, email, instant messaging, and social networking are now more common than telephone calls, and it makes sense to examine whether there is a reasoned basis for distinguishing between the processes used to obtain addressing information associated with wire and electronic communications. In addition, it is important to recognize that addressing information is an essential building block used early in criminal and national security investigations to help establish probable cause for further investigative techniques. Congress could consider whether this is an appropriate area for clarifying legislation.
Translation: it sure would be useful for the government to comb through e-mails without any probable cause to believe there’s any crime involved, find out who’s writing to whom, and use that information to investigate people further.
That same special someone also thinks that probable cause is too heavy a burden to search through the actual contents of the e-mails you write to see if there’s anything incriminating:
Finally, the eighth and last potentially appropriate topic for legislation is the standard for compelling disclosure of the contents of stored communications. As noted above, we appreciate that there are concerns regarding ECPA’s treatment of stored communications – in particular, the rule that the government may use lawful process short of a warrant to obtain the content of emails that are stored for more than 180 days. Indeed, some have argued recently in favor of a probable cause standard for compelling disclosure of all such content under all circumstances. Because communication services are provided in a wide range of situations, any simple rule for compelled disclosure of contents raises a number of serious public safety questions. In considering whether or not there is a need to change existing standards, several issues are worthy of attention….
Congress should recognize the collateral consequences to criminal law enforcement and the national security of the United States if ECPA were to provide only one means – a probable cause warrant – for compelling disclosure of all stored content.
Translation: it sure would be useful for the government to comb through e-mails without any probable cause to believe there’s any crime involved, find who’s been writing what, and use that information to sort out people writing the wrong sort of thing to investigate further.
Who testified that it would be swell for the government to find out your location without probable cause, to search through your communications for correspondents without probable cause, and to pore through the content of what you write without probable cause?
His name is James A. Baker. He’s the Associate Deputy Attorney General for the Obama administration.
The presidential administration of Barack Obama wants to search through your communications and pinpoint your location without probable cause. That’s not what the Constitution calls for, but for the Obama administration constitutional requirements are an unacceptable burden.
Is that acceptable to you?