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June 13, 2011

Writs of Assistance Are Back

You know why we had the American Revolution? Writs of assistance. Writs of assistance were a form of non-specific search warrant in colonial times that enabled officials working with the British Empire to search anything they wanted at any time. They had no expiration; they did not have to detail a location, and they did not have to describe the items being sought. Our forefathers blew a gasket over that and ran the English out of this country.

From Wikipedia:

In practice, customs writs of assistance served as general search warrants that did not expire, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. These writs became controversial when they were issued by courts in British America in the 1760s, especially the Province of Massachusetts Bay. Controversy over these general writs of assistance inspired the Fourth Amendment to the United States Constitution, which forbids general search warrants in the United States. In the United Kingdom, general writs of assistance continued to be issued until 1819.[6]

Well, the Fourth Amendment is under attack today, especially with all the newfangled spy toys in this digital age, and writs of assistance are back.

From the story linked at Drudge today, Dirty Bureaucrats Expand Their Search Authority:

Washington • The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents — allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The FBI soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

. . .

Some of the most notable changes apply to the lowest category of investigations, called an "assessment." The category, created in December 2008, allows agents to look into people and organizations "proactively" and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

(Emphasis mine.) Notice is says "criminal or terrorist activity"? Because we got to have the word "terrorist" in there. That way we can better fool the public!

Who is minding the store? Is the FBI so adverse to shoe leather investigation, they need to tell us, "Trust us; we're professionals, and we only want to look at anything we want to, and these new digital toys sure are convenient!"? We already have the legal fiction that there is no reasonable expectation of privacy with, say, your checking account, since bankers and people who work in end-clearing can look at it. Never mind the fact that no one expects a banker to actually identify you individually or your account activity as they monitor thousands of accounts and watch checks whiz by at the rate of 100 per second. Courts have allowed the distortion of "reasonable expectation of privacy" to the point it is almost meaningless.

And FBI agents. Trustworthy professionals, right? After all, they work for our nation's premier law enforcement organization. The fact is, they are people just like the people on your street or in your workplace. Most are decent, competent, ethical people, but every neighborhood and workplace has its Gladys Kravitz or George Constanza. People do dirty things for arbitrary and capricious reasons, and FBI agents are no different. They're just people too. Imagine the dirtiest schmuck you know going through your private things. They have some of those guys working at the FBI.

Years ago, my ex best friend married a particularly nasty person who got a job with the IRS. Guess how long it took for her to dig into all the friends' and neighbors' tax records. Guess how long it took for her to relay some of what she found to him, which eventually made its way back to me. Not long. Not long at all. And on this kind of thing, this skirting the rules, they sit back and chuckle to themselves, basking in the warmth of their power. (It's authority, not power, but they wouldn't know the difference.) With an ugly self-satisfaction, my friend told me about his wife's workplace, about how they would use work friends' computer terminals so that inappropriate searches could not be traced back to them.

The point is, FBI agents are bureaucrats too, no better or worse than this woman, and with the potential to do immeasurably greater snooping.

The Founding Fathers would not have put up with this for a second. The Fourth Amendment is not some annoying little hurdle, a trifle to be treated as a mere inconvenience to be gotten around while "us good guys on the inside nobly go about our duty." It's there for a reason.


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posted by rdbrewer at 01:16 PM

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