Let’s talk about the fourth amendment.
Now to be upfront, I am not a lawyer. That sentence is usually followed by a “but, I blah blah blah might as well be” bullshit justification for being an expert, even if on the layman level.
I am not a constitutional law expert either.
I’m a weird bird. I consume trial transcripts. There’s probably half a dozen cases where I have read every brief, motion transcript or filing. US v Microsoft is probably where I got the bug. Such a fascinating case from end to end.
That doesn’t make me a lawyer.
I do, however, have opinions on the law. I also where possible, repeat guidance that learned lawyers have stated publicly.
With that, let us examine the 4th amendment to the Constitution of the United States:
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.
This is a good amendment, and very important. It essentially is the protection in our society from the government simply looking at whatever it wants to on a fishing expedition and it has served us well to date.
But then 9/11.
I’ve stated it before, but there is an old joke that a liberal is simply a conservative that has never been mugged. On 9/11 our entire country got mugged. To put it succinctly: We lost our collective minds.
Shrouded in cries of “Never forget” and “Protect the homeland” we quite simply did shame to our founding fathers by agreeing to give up many of the things that make America unique. All in the interests of thinking we could prevent another 9/11 from happening.
We can’t. Another major terrorist attack will happen on American soil. If you count domestic terrorism, many already have. It is not a “solve for zero” problem. The safest society in the world is one that chains everyone in the country to their beds 24/7. The greatest victory Osama Bin Laden achieved is our own violation of our principles. Every shoe taken off at an airport, every email read by the NSA, every time a TSA agent violates someone’s body in the interests of the greater good of security is in the final analysis, a victory for those who attacked us. They terrorized us.
So why does this bring me to the 4th amendment?
The word “Warrant”.
We put a lot of stock in that word. I don’t know an American who would not say “well if they had a warrant then…”
But here’s the thing. It’s trivial to get one. It is the linchpin of the entire 4th amendment. It is the very due process we trust. That a judge considered the arguments and, having weighed the impact and risks, issued the command that bypasses the amendment.
How many warrants are denied? Less and less I fear. I am concerned that in the post 9/11 world no judge wants to be the one to deny a warrant if the word terrorism is involved. I am concerned the process of obtaining a warrant, often on very tight timelines, has been so diluted as to make the 4th amendment itself useless.
Let us consider a hypothetical. I tweet to Edward Snowden. He replies. Because his twitter stream is followed closely by law enforcement, and I am a well-known member of the security industry, how difficult would it be on the part of a judge to issue a warrant to search my computers and phone due to Snowden’s status as a fugitive whose actions have (according to those pleading the warrant) materially affected the security of the United States?
I see struggles like this all the time. Thanks to the Patriot act one need simply find some way to invoke terrorism in the application for a warrant and many safeguards that might give a judge or controlling authority pause simply melt away.
This problem is not related to political administrations. It existed under Bush, Obama, and now Trump.
Armor is only as strong as its weakest point. In the case of the 4th amendment, the strongest link is now made of brittle, poorly cast metal.