According to the federal government, the Fourth Amendment contains a gaping loophole.

In fact, this loophole swallows up every word of the amendment, leaving a blank space in the Bill of Rights where privacy protections once resided.

They call it the “special needs doctrine.” It works likes this: the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated unless the government needs to.

And who decides if the government needs to violate your privacy? Why the government, of course!

Imagine a law that criminalized stealing your neighbor’s car, unless you needed it. And the thief gets to define “need.” Need a car to go to the store? No problem. Steal your neighbor’s! Need a car to sell for parts so you can pay off your gambling debt? No problem, steal your neighbor’s! Need a pickup truck to move your couch? No problem, steal your neighbor’s.

Of course, such a law would be no law at all. For all practical purposes it wouldn’t exist.

That’s how your government views your right to privacy.

In December 2013, Larry Klayman sued the federal government arguing that collection of phone and Internet data under Section 215 of the Patriot Act violates several constitutional provisions, including the Fourth Amendment. Section 215 authorizes the FBI to demand “any tangible things” in connection with an “authorized investigation” involving terrorism. These demands don’t require a warrant, probable cause or even “reasonable grounds.”

Federal District Judge Richard J. Leon ruled the metadata collection unconstitutional.

I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval … Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.

Of course, the Obama administration appealed. In a brief filed last month, the feds argued that the Fourth Amendment doesn’t really exist.

If obtaining bulk telephony metadata from the business records of telecommunications companies were a Fourth Amendment search, it would nevertheless be constitutionally permissible. The Fourth Amendment bars only unreasonable searches and seizures, and the Section 215 telephony-metadata program is reasonable under the standard applicable to searches that serve ‘special needs’ of the government.  The national security and safety interests served by the Section 215 program are special needs of the utmost importance.

Using government “need” as the criteria to define “reasonable” is as patently ridiculous as a car thief ‘s need defining car theft.

The Bill of Rights was meant to protect you from arbitrary government power. The government flips that idea on its head, arguing that the Bill of Rights  actually protects its power from you.

The courts may or may not ultimately agree. In the meantime, you can take proactive action to stop spying through state and local action. Join OffNow today!

Mike Maharrey

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