Happy Bill of (endangered) Rights Day

By Lance Brown - Sat, Dec 15, 2001

A common refrain of the defenders of the post-Sept. 11 expansion of police powers is, We may have to give up some of our freedoms in the interest of increased security. In the past three months, the federal government has made it clear it takes this maxim to heart, and has opened the floodgates of law enforcement's powers in a big way.

Dec. 15 - today - is Bill of Rights Day, the anniversary of the ratification of the first 10 amendments to our nation's Constitution. Since the Bill of Rights seeks to defend our freedoms from encroachment by government authority, that document's birthday seems like the perfect time to examine those freedoms, and see how well they are holding up under the strain of 210 years of growing government (and three months of ballooning wartime government).

Take the Fourth Amendment, for example. It's the amendment that has been hit hardest in the past 20 years and in the past three months. The Fourth Amendment was designed to ensure our right to be secure from unreasonable search and seizure. In the past, the government has tried to comply with the Fourth Amendment by ensuring that only criminal suspects were subject to search and seizure. Aside from a few major exceptions such as asset forfeiture law, and the surveillance of subversive activist groups, the government has largely taken steps to ensure that searches and seizures are reasonable. Until now.

The new USA PATRIOT Act has legalized the use of Carnivore, an FBI Internet wiretapping tool that searches the e-mail (and Web surfing, and instant messages, and more) of thousands of non-suspects each time it searches the e-mail of a potential criminal. What's more, the Fourth Amendment requirement of probable cause has been ratcheted down to reasonable suspicion in many instances. And if that weren't enough, warrants that used to require a judge's approval now only require approval from a state attorney general or a federal attorney. In other words, instead of convincing an impartial judge that a suspect needs to be searched, police and district attorneys need only convince fellow law enforcement officials and prosecutors.

The Fourth Amendment has more to say. Aside from insisting that warrants are based on probable cause, it also states that they must specifically describe the place to be searched, and the person or things to be seized. For the most part, the government has tried pretty hard to obey that rule. Until now.

Carnivore, mentioned above, has the capability to scan the communications of every subscriber to an ISP, and search for keywords, names, e-mail addresses or anything else going through the pipeline. By its design, it doesn't just search the communications of one suspect - it searches hundreds or thousands of people's communications.

A real world parallel would be if police were able to use a search warrant for one person's apartment to search all of the building's apartments, looking for anything related to their suspect. What happens if they stumble upon unrelated suspicious activity in the process? We'll have to wait and find out, as the courts try to make constitutional sense out of the most significant and disturbing law enforcement legislation of our generation.

The last of the major blows to the Fourth Amendment is the notion of roving wiretaps. In the past, in order to obey the Fourth Amendment, law enforcement was required to get a warrant for each phone line they wanted to tap. In other words, they had to particularly describe the place to be searched, as the amendment says. Until now.

The USA PATRIOT Act, that wolf in sheep's clothing, gives the green flag to roving wiretap warrants - open-ended warrants that allow police to tap into any phone that can be associated with their suspect. That includes pay phones, friends' phones, cell phones, pagers, faxes, e-mails - any medium that can be related in some way to the person they are watching and listening to. This amounts to interpreting particularly describing the place to be searched and things to be seized as permission to say we will search and/or seize anything that the suspect comes in contact with, if we choose.

Lately, the federal government is seriously disrespecting so many of the limits imposed by the Constitution and the Bill of Rights that it can't be covered in one column or article. I chose to focus on the Fourth Amendment because it has been the most disregarded as of late. There will be hundreds of thousands of pages written about the aggressive wartime law enforcement measures being employed, and their impact - on our right to due process and public trial by jury, on freedom of speech and the press, on attorney-client confidentiality, the rights of non-citizens in our country, and many more issues. We as citizens need to get informed and join in the dialogue.

We should celebrate our constitutional freedoms, on Bill of Rights Day, and every day - but we must also stand up for them, or they will continue to be disregarded, and eventually forgotten altogether.