The NSA's seizure of data on every American is akin to the “general warrants” issued by King George

 

Georgetown professor of constitutional law wrote yesterday in the Wall Street Journal:

With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.

David Snyder provides a must-read historical summary at the Electronic Frontier Foundation:

The government’s ongoing violation of fundamental civil liberties would have been very familiar to the men who gathered in 1791 to adopt the Bill of Rights. The Founding Fathers battled an 18th century version of the wholesale surveillance that the government is accused of doing today – an expansive abuse of power by King George II and III that invaded the colonists’ communications privacy.

Using “writs of assistance” [another name for "general warrants"] the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs”spurred colonists toward revolution and directly motivated James Madison’s crafting of the Fourth Amendment.

[The U.S. Supreme Court noted in Stanford v. Texas:  “Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.”  And the Supreme Court said in  Marcus v. Search Warrant of Property: “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”]

We’ve now come full circle. The president has essentially updated this page from King George’s playbook, engaging in dragnet surveillance of millions of Americans, regardless of whether they are suspected of a crime.

WRITS OF ASSISTANCE 

Writs of assistance gave the King’s men – customs officials generally, but not exclusively – carte blanche to search the homes, papers and belongings of anyone. They permitted officials to “enter and go into any House, Warehouse, Shop, Cellar or other Place” to seize contraband goods.Though similar in a very broad sense to search warrants, they bore little resemblance to the modern document.

Neither do the modern spying authorizations by the Fisa court. They required no judicial oversight or probable cause – the evidence investigators must show before a judge will issue a warrant.

THE FOURTH AMENDMENT 

It is “familiar history,” the U.S. Supreme Court noted in Payton v. New York, that “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”

In 1967, the U.S. Supreme Court in Katz v. United States affirmed that the Fourth Amendment’s protection against searches and seizures extends to telephone conversations captured on wiretaps. In recognizing that the principle that the Fourth Amendment prohibits indiscriminate searches
regardless of the technology involved, the Court made it plain that advanced technology doesn’t clear the government of the duty to establish probable cause, and to receive a warrant, before rummaging through the private lives of Americans.

Over the past few years our government has argued that the modern exigencies of national security have changed the rules of the game and that the niceties of judicial process simply no longer apply.
Madison likely would have rejected this argument, but he wouldn’t have been surprised by it. “Perhaps it is a universal truth,” Madison wrote in a 1798 letter to Thomas Jefferson, “that loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.” (History buffs can read more here.)

The ACLU notes:

It’s clear as day that the NSA’s bulk collection orders, like the one Edward Snowden disclosed from Verizon, violate the principles James Otis laid out in his famous attack against the writs of assistance.

These orders are not directed at any one of us, but instead sweep up records about all of our communications, violating both the letter and the spirit of the Fourth Amendment, which clearly states that the government cannot rummage through our personal effects absent specific, probable cause and a sworn affidavit.

As Daniel Ellsberg points out, modern Americans face some affronts to liberty worse than those faced by the Founding Fathers under King George.

http://www.washingtonsblog.com/2013/07/nsa-spying-is-exactly-the-kind-of-thing-which-caused-the-revolutionary-war-against-king-george.html

Why the Fourth Amendment sucks and doesn't prevent mass electronic surveillance:

http://www.dailykos.com/story/2013/07/16/1214827/-Why-the-Fourth-Amendment-Sucks-And-Doesn-t-Prevent-Mass-Electronic-Surveillance-A-Factual-History#

Privacy groups led by EFF sue to stop NSA and FBI electronic surveillance:

Rights activists, church leaders and drug and gun rights advocates found common ground and filed a lawsuit on Tuesday against the federal government to halt a vast National Security Agency electronic surveillance program.

The lawsuit was filed by the Electronic Frontier Foundation, which represents the unusually broad coalition of plaintiffs, and seeks an injunction against the NSA, Justice Department, FBI and directors of the agencies.

Filed in federal court in San Francisco, it challenges what the plaintiffs describe as an "illegal and unconstitutional program of dragnet electronic surveillance."

The suit came after former NSA contractor Edward Snowden leaked details about NSA surveillance programs last month, revealing a broad US intelligence program to monitor Internet and telephone activity to ferret out terror plots.

NSA public affairs deferred comment on the Electronic Frontier Foundation lawsuit to the Justice Department. A Justice Department spokesman did not immediately respond to a request for comment.
In the suit, the coalition demands that the federal government return and destroy any telephone communications information in its possession. It also wants a jury trial on the allegations contained in the suit.

The plaintiffs include the First Unitarian Church of Los Angeles, the Council on American Islamic Relations Foundation, Greenpeace, Human Rights Watch, Students for Sensible Drug Policy and others.

The federal government has "indiscriminately obtained, and stored the telephone communications information of millions of ordinary Americans as part of the Associational Tracking Program," the lawsuit states.

Last month, the American Civil Liberties Union filed a similar lawsuit in federal court in New York asking the government to stop the phone tracking program. Several other civil liberties organizations have also filed legal actions.

A legal expert said the biggest challenge that plaintiffs will face is proving they have actually been wiretapped or been a victim of surveillance.

"But it's now clear that virtually everyone's phone call records can be gathered in this metadata collection program, so I believe they do have standing," said University of Chicago law professor Geoffrey Stone.

Other legal issues include whether the surveillance constitutes a violation of the Fourth Amendment, which guards against unreasonable searches and seizures.
http://www.guardian.co.uk/world/2013/jul/16/privacy-eff-nsa-fbi-surveillance