Fourth Amendment, due process are necessary, not optional

By Luke Wilusz

The U.S. Department of Justice is asking Congress for the right to ignore the First Amendment.

A coalition of Internet service providers and other groups called Digital Due Process—which includes Google Inc., the American Civil Liberties Union and the Electronic Frontier Foundation—has been lobbying to update the 1986 Electronic Communications Privacy Act. Government and law enforcement officials currently require no probable cause warrant to force ISPs to hand over emails that have been stored on online servers—such as in Gmail or Yahoo mail—for more than 180 days. Digital Due Process is trying to convince legislators to give those emails the same protections against unreasonable search and seizure as those stored on personal computers, which require a court-issued warrant before they can be accessed.

A Dec. 14, 2010 decision by the U.S. Sixth Circuit Court of Appeals ruled the clause in the ECPA that allowed the government to access these emails without a warrant was unconstitutional. The ruling became effective on March 21 and applies to Kentucky, Michigan, Ohio and Tennessee. If it’s appealed, it’s only one step away from the U.S. Supreme Court, which could rule to make the decision a federal law.

On April 6, James Baker, an associate deputy attorney general, told the Senate Judiciary Committee on behalf of the Justice Department that requiring warrants to access these personal emails would put an unnecessary burden on the government and interfere with law enforcement officials’ ability to do their jobs. Sen. Chuck Grassley, R-Iowa, said requiring warrants would also put an unnecessary burden on the court system.

However, all the opponents of probable cause warrants for emails seem to overlook a little thing called the Fourth Amendment. Due process, probable cause and protections against unreasonable and unlawful search and seizure are not trivial concerns or “unnecessary burdens.” They are fundamental cornerstones of our legal system and crucial safeguards against governmental abuses of power. The whole point of these protections is, in a way, to slow down investigations—not to hinder them but rather ensure law enforcement officials take the time to investigate and do their jobs properly. They shouldn’t be able to access an individual’s personal data without a proper, reasonable justification for doing so.

The Fourth Amendment decrees “the right of the people to be secure in their persons, houses, papers, and effects” against violation by the government without probable cause and a warrant. In this day and age, people’s “papers and effects” aren’t limited to physical documentation. As more aspects of our lives move into the digital world, they should retain the same protections they had in the past. A person’s email should be equally private and secure whether it’s stored locally on his or her computer or on a third-party email server.

The Department of Justice wants to strip away these protections the same way the federal government has been stripping away other civil liberties for more than a decade in the name of national security. In his testimony, Baker claimed the government needed to be able to access and promptly act upon sensitive communications without being slowed down by warrants to defend the public from “terrorists, spies, organized criminals, kidnappers and other malicious actors.”

However, it isn’t worth trading away fundamental, constitutionally protected and guaranteed liberties in exchange for possible protection and security from theoretical threats. Stripping the people of their most basic rights, no matter how good the intentions for it may be, leads us down a slippery slope. The government is fully capable of enforcing laws and keeping the peace within the bounds of the law: That’s how things were done for centuries before “national security” became the catchphrase for getting a blank check to expand government authority, and that’s how the government should continue to operate. As Benjamin Franklin once famously wrote, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

The people who make and enforce the laws should not be able to place themselves above the law, and we should not allow them to get away with every petty attempt to do so. Congress should ignore the Justice Department’s pleas for the right to ignore the Constitution and instead uphold the constitutional rights of the American people.