If ever one needed a cogent example of why relying on the federal government to comply with the constitution and protect the liberties of the people is hopeless, the senate just gave one. Robert Wenzel reports over at his EconomicPolicyJournal that in a 79 to 12 vote, the senate rejected an amendment to the Foreign Intelligence Surveillance Act Amendments Act Reauthorization Act of 2012 (the actual name of the bill!), H.R.5949, that would have extended 4th Amendment protections to electronic communications.
Prior to the vote Rand Paul spoke on the floor urging passage of the amendment:
The Fourth Amendment guarantees that people should be secure in their persons, houses and papers against unreasonable searches and seizures.
Somewhere along the way, though, we became lazy and haphazard in our vigilance. We allowed Congress and the courts to diminish our Fourth Amendment protection, particularly when our papers were held by third parties.
I think most Americans would be shocked to know that the Fourth Amendment does not protect your records if they’re banking, Internet or Visa records. A warrant is required to read your snail mail and to tap your phone, but no warrant is required to look at your e-mail, text or your Internet searches. They can be read without a warrant. Why is a phone call more deserving of privacy protection than an e-mail?
This amendment would restore the Fourth Amendment protections to third-party records, and I recommend a yes vote.
Now, forget for a second that only 12 senators agree that warrants (which are of dubious merit in practice anyway) should be required for government agents to read your e-mail correspondence. Just consider the need to write laws in order to enforce existing laws. The Bill of Rights is a farce, as this episode clearly shows. If the 4th Amendment meant anything, there would be no need to amend an act amending another act, to protect the 4th Amendment!
Instead of hoping this kind of chicanery is going to do anything to defend the liberties of the people, states and local governments should interpose on behalf of citizens. Refusal to provide logistical support to federal authorities during investigations and raids will go a long way in combating this sort of breach of due process. If nothing else, it will send a strong message that such machinations are unacceptable.