Just months after a public outcry scuttled a bill sailing through
Congress that would have given federal law enforcement authorities the
right to conduct secret searches, a new threat to the Fourth Amendment
has arisen that will allow federal agency employees, rather than judges,
to authorize certain searches of personal information.
WorldNetDaily reported on a bill, the Methamphetamine Anti-Proliferation Act, which contained a section that would have authorized federal agents to enter a citizen’s home or office with a warrant, to search and copy files from his computer and not tell him what items were taken until months afterwards. The bill also exempted law enforcement officials from ever telling suspects that certain “intangible” items were seized or copied.
After a bipartisan coalition of Republican and Democratic members of the House Judiciary Committee, including Rep. Sheila Jackson Lee. D-Texas, and Rep. Bob Barr, R-Ga.,
expressed serious reservations about the so-called “sneak-and-peak” searches, the measure was pulled from the bill.
The latest assault of the Fourth Amendment is contained in section 3(g) of the
Fugitive Apprehension Act, S. 2516, which would authorize the attorney general to issue “administrative subpoenas” for personal information and records without court authorization. A delayed reporting requirement also found in the bill allows Department of Justice attorneys to ask the court to conceal the subpoena from the target of the investigation.
The bill has already passed the Senate, and opponents of the measure are concerned that it might be brought to a vote in the House as early as this week.
David Kopel, an attorney and constitutional expert for the Denver-based
Independence Institute told WorldNetDaily the U.S. Marshall Service is pushing the administrative subpoena provision to broaden their search powers in fugitive cases, but that the provision is unneeded.
“There is absolutely no reason for this provision, because any agency pursuing a fugitive can go to court and get the search warrants they need almost immediately,” Kopel said. “What this provision does is cut the court out of the process, which is a very dangerous precedent. The Fourth Amendment envisions courts issuing warrants, not unaccountable bureaucrats.”
Rachel King, legislative counsel for the ACLU’s Washington, D.C., office, says the current battle illustrates the problems of protecting personal privacy in the digital age at a time when government officials are playing with the boundaries of the search and seizure requirements of the Constitution.
“A lot of this debate is what kind of privacy you have with personal documents and information that used to be kept by individuals in their homes, but now is kept by third parties,” King said. “Now that most private records are not kept solely at home, the government is arguing that the Fourth Amendment doesn’t apply any longer. Not recognizing the constitutional protection that the Fourth Amendment gives to items like this would give the government huge power and access to most of our personal information.”
King also said that while House leaders may not allow the bill to be brought up to a vote, it could reappear in the closing days of this session in one of the mammoth appropriations bills that will need to be passed before Congress adjourns before the November elections.
“The problem with something like this is that the threat is not so much that it might pass the House, which we are trying to stop, but that it will end up getting stuffed in one of the spending bills in the next few weeks, and then we will never be able to get it taken out,” King said.
If supporters of the administrative subpoena authorization are able to get the provision inserted into appropriation legislation, the entire spending bill would need to be voted down in order to defeat the measure.
Events at the end of congressional sessions in recent years indicate that such a scenario might be likely:
- In 1998, Rep. Bill McCollum, R-Fl., successfully inserted a roving wiretap provision into the “Intelligence Authorization Act,” a spending bill that funded various intelligence agencies, after that bill had already been voted on by both the House and Senate.
- In 1996, Rep. Lamar Smith, R-Texas, included a bill establishing national ID card regulations in the 1,600-page Omnibus Appropriations Act. After a massive response by the public to the regulations issued by the Department of Transportation, Congress revisited the issue and de-funded the program.
- In 1994, Congress enacted the Communications Assistance for Law Enforcement Act in the closing hours of the congressional session, which required telephone firms to make it easy to wiretap the nation’s communication system, even after Justice Department lobbyists had told civil liberties groups that they would not push the measure.
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