A Eulogy for the Fourth Amendment

Even the Obama's Fans Aren't Pretending that was a Good Speech
by DAVID SWANSON


President Barack Obama gave a eulogy for the Fourth Amendment on Friday, and not even his fans are proclaiming victory. In this moment when Obama is actually doing one thing I agree with (talking to Iran), more and more people seem to be slowly, agonizingly slowly, finally, finally, finally, recognizing what a complete huckster he is when it comes to pretty speeches about his crimes.

Obama’s speech and new “policy directive” eliminate the Fourth Amendment. Massive bulk collection of everybody’s data will continue unconstitutionally, but Obama has expressed a certain vague desire to end it, sort of, except for the parts that are needed, but not to do so right away. The comparisons to the closure of the Guantanamo death camp began instantly.

Far from halting or apologizing for the abuses of the NSA, Obama defends them as necessitated by the danger of a new 911. While drones over Yemen and troops in Afghanistan and “special” forces in three-quarters of the world are widely understood to endanger us, and while alternatives that upheld the rule of law and made us safer would not require secrecy or human rights violations, Obama wants to continue the counterproductive and immoral militarism while holding off all blowback through the omniscience of Big Brother.

However, Obama’s own panel and every other panel that has looked into it found zero evidence that the new abusive NSA programs have prevented any violent attacks. And it is well-documented that (even given the disastrous policies that produced 911) the attacks of that day could have been stopped at the last minute by sharing existing data or responding to urgent memos to the president with any sort of serious effort.

Obama has not proposed to end abuses. He’s proposed to appoint two new bureaucrats plus John Podesta. Out of this speech we get reviews of policies, a commitment to tell the Director of National Intelligence to read court rulings that impact the crimes and abuses he’s engaged in, and a promise that the “Intelligence Community” will inspect itself. (Congress, the courts, and the people don’t come up in this list of reforms.) Usually this sort of imperial-presidential fluff wins praise from Obama’s followers. This time, I’m not hearing it.

True, after EFF created a great pre-speech scorecard, when Obama scored a big fat zero, EFF said it was encouraged that he might score a point some day. But they didn’t sound impassioned about their encoragement.

Obama’s promises not to abuse unchecked secret powers (and implied promise that none of his successors or subordinates will abuse them either) is not credible, or acceptable, while it just might be impeachable. We’re talking here about the same government that listens in on soldiers’ phone sex, Congress members’ daily lives, and everything it can get its hands on related to the actual, rather than rhetorical, promotion of liberty, justice, or peace. A report today quotes various members of the government with security clearance who want to murder Edward Snowden. We’re supposed to just trust them with the right to or persons, houses, papers, and effects without probably cause or warrant? Are we also to trust the corporations they ask to do their dirty work, should the theoretical future reform of this outrage involve paying corporations to own our info?

Obama claims the “debate” — in which no debate opponent was given a minute at the microphone — is valuable. But the whistleblowers who create such debates “endanger” us, Obama says. This he claims without evidence.
If the debate was so useful, why not give the man who made you hold it with yourself his passport back?

Obama began Friday’s speech with a Sarah Palinesque bit of Paul Revere history. Revere is now an honorary NSA spy. In reality, the British would have hit Revere with a hellfire missile if Obama had been their king. It all depends on which side of a war you imagine someone to be on, and on whether you imagine war itself is an acceptable form of human behavior at this late date. Without the endless war on the world, the need for secrecy would go away, and with it the powers that secrecy bestows, and with them the arrogant speeches by rulers who clearly hold us all in contempt.

Resisters of royalty came up with a cure back in Paul Revere’s day. They called it impeachment. Of course it would be highly inappropriate to use. It might get in the way of the Fight for Freedom.

Judge Declares Law Governing Warrantless Cellphone Tracking Unconstitutional

By Julia Angwin - Wall Street Journal
November 16, 2011,

In a succinct one-page ruling, U.S. District Court Judge Lynn N. Hughes of the Southern District of Texas declared that the law authorizing the government to obtain cellphone records without a search warrant was unconstitutional.

“The records would show the date, time, called number, and location of the telephone when the call was made,” Judge Hughes wrote in the decision, dated Nov. 11. “These data are constitutionally protected from this intrusion.”

Judge Hughes’ decision comes as the U.S. government is facing increasing judicial challenges to its practice of obtaining information about the location of individuals without a search warrant. Last week, the Supreme Court heard oral arguments in a case where the government placed a GPS tracking device under a vehicle and monitored the driver’s movements for a month without a search warrant.

During the argument, Chief Justice John Roberts said to Michael Dreeben, deputy solicitor general of the Justice Department: “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The Justice Department argues that people have no expectation of privacy on public roads.

Cellphone records are governed by the Electronic Communications Privacy Act, a 1986 law that permits law enforcement officers to obtain certain digital records – such as some e-mail and cellphone records – without a search warrant. A coalition of technology companies—including Google Inc., Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.

At the same time, judges in lower courts have been questioning the constitutionality of the law, which only requires officers to show “specific and articulable facts” the electronic records sought are “relevant and material” to an ongoing investigation. For physical searches of a person’s home, the government is required to show probable cause that a crime was committed and obtain a search warrant.

Since 2005, more than a dozen magistrate judges have written opinions denying applications for court orders to track cellphones without search warrants. The nation’s roughly 500 magistrate judges handle applications for search warrants and other types of electronic surveillance in federal courts.

Of course, some have upheld warrantless searches. Last week, U.S. District Court Judge Liam O’Grady ruled that the government could obtain data from the Twitter accounts of three WikiLeaks without a search warrant.

Last year, Magistrate Judge Stephen Smith of U.S. District Court in the Southern District of Texas issued an opinion denying the government access to 60 days worth of information about a cellphone subscriber’s location and phone calls, without a search warrant.

Magistrate Judge Smith wrote that although cellphone tracking wasn’t envisioned by the writers of the Constitution, it had become so precise and pervasive that “for a cellphone user born in 1984, however, it is now conceivable that every movement of his adult life can be imperceptibly captured, compiled, and retrieved from a digital dossier somewhere in a computer cloud. Now as then, the Fourth Amendment remains our polestar.”

The government appealed, saying that the Fourth Amendment, which protects against unreasonable searches and seizures, does not apply because “a customer has no privacy interest in business records held by a cell phone provider, as they are not the customer’s private papers.” The government also challenged Judge Smith’s description of the accuracy of location tracking as “inaccurate or misleading,” and submitted an affidavit from cellular provider MetroPCS Wireless Inc. stating that the average coverage radius of its cellular towers was about “one or two miles.”

The district court ruling was short, but declarative. It affirmed Magistrate Judge Smith’s decision on constitutional grounds. “When the government requests records from cellular services, data disclosing the location of the telephone at the time of particular calls may be acquired only by a warrant issued on probable cause,” Judge Hughes wrote. “The standard under the [existing law] is below that required by the Constitution.”