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May 20, 2015

McConnell: The House NSA Bill Could Make Us Go Dark

The Fourth Amendment:

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.

That seems pretty straightforward. It means that the Constitution protects people from unreasonable searches and seizures by the government. What gave rise to the Fourth Amendment in colonial times was Britain issuing writs of assistance. This was a form of a general or blanket search warrant, giving officials the right to search anywhere and anytime for smuggler's goods. And the writs were in effect open-ended, because who was going to ensure they were used only for smuggler's goods? They led to tremendous abuse, of course, because people are rotten.

The geniuses who framed the Constitution put a stop to all that and restrained governmental overreach as set out above in the Fourth Amendment. Authorities could still search, but they needed probable cause and a search warrant.

The House NSA bill seeks to end warrantless data collection. But according to Senator McConnell, the House NSA bill could make us go dark. Isn't that a little silly? We were not "dark" before the digital age, and those who would like to see bulk data collection eliminated are not talking about eliminating lawful searches or shutting down the NSA. We only recently gained the power to keep tabs on just about everyone. The digital age made that exceedingly easy. It is this new power law enforcement and statists like McConnell want to keep. But they're not interested in abiding by the Constitution and obtaining search warrants; they want to keep the power to search anyone's "papers and effects" as if the Fourth Amendment doesn't exist.

Senate Majority Leader Mitch McConnell says House-passed legislation effectively could cause the country to "go dark" when it comes to collecting Americans' phone records.

(Emphasis added.) It's a little shocking he would say that with such ease. "Collecting American's phone records." He assumes people are fine having their private data collected. McConnell and his supporters also seem unaware section 215 of the Patriot Act does not and never did authorize bulk data collection. Or they don't care. They seem happy with errant FISA star chamber rulings that have driven section 215 past its original intent, allowing the mass data collection. They appear not to care the bulk data collected is routinely shared with other agencies for purely domestic purposes.

I get it; some of these senators know better than the Founding Fathers and are happy with warrantless bulk data collection, but the Constitution does not allow that. We have the right to be secure in our papers and effects, and this de facto NSA writ of assistance is precisely why the Fourth Amendment was created.

McConnell also says, "But we're talking about the security of the country here. This is no small matter." I would suggest the security of the country rests more upon a strong Fourth Amendment than it does concerns about terrorism* (keeping in mind Patriot Act "terrorism" apparently includes warrantless searches of Americans on purely domestic matters). As we've seen time and again, government and law enforcement are filled with people who are merely human. They do not shed their human foibles when they swear the oath. There are too many rotten apples in government for us to water down the protections afforded by the Fourth Amendment. The Founding Fathers were aware of that. And even if these people are wonderful professionals today, that does not mean the NSA and the agencies it works with will be wonderful and professional ten years from now.

Ostensibly, the Patriot Act was created to expand government’s counterintelligence capabilities because of terrorism. Terrorism, the threat from abroad. Remember? Terrorism is what sold it. The reality is the scare of terrorism was used to create a law that enabled all investigative agencies to use information gleaned without a search warrant for domestic purposes as well. Yes, they look for terrorists, but their track record of using bulk data collection to stop terrorists hasn't been that great.

*In a free country we accept a certain degree of risk. Yes, terrorism will strike again in the United States. We cannot protect against all of it, and we must do what we reasonably can to stop it, but we cannot change our way of life and erode Constitutional protections in the process. We must learn to keep the threat of terrorism in perspective. About a thousand people die every week in car wrecks, for example. We live with that risk, because the number is low when compared to the population, the risk to any one of us is low, and we need cars. We must learn to keep the threat of terrorism in similar perspective. The threat is exceedingly low--too low to fiddle with the Constitution and change our way of life.

Remember: Patrick Henry didn't say "Give me security..."; he said, "Give me liberty or give me death!" Security is an excellent goal, but we cannot overdo it. We cannot let an unreasonable fear of terrorism reduce our freedom and enhance the scope and power of government.

Update: According to the Washington Examiner, McConnell may be changing his mind because of the looming deadline. Key parts of the law, including section 215 expire on June 1.

Senate Majority Leader Mitch McConnell, R-Ky., announced Tuesday he will allow a vote on the USA Freedom Act, despite his opposition to the legislation.

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posted by rdbrewer at 09:35 AM

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