Bob Barr

Right to Privacy Destined for Endangered List

The Atlanta Journal-Constitution

October 4, 2006

The Fourth Amendment to our Constitution protects Americans against "unreasonable searches and seizures" and against warrants being issued without "probable cause" that they have done something wrong. While most Americans who might be familiar with this portion of our Bill of Rights probably consider its protections to apply only to criminals and therefore of little consequence to them, the Fourth Amendment actually provides vital protection to all Americans, not just "criminals."

In fact, its prefatory language makes this clear, explicitly providing that its goal is to assure that the "right of the people to be secure in their persons, houses, papers and effects." In short, the Fourth Amendment stands for the proposition that every American has a zone of privacy—their "persons, houses, papers and effects"—into which the government may not intrude unless it has a good and articulable reason for doing so.

While electronic surveillance or eavesdropping was obviously unknown to our Founding Fathers when they crafted the Fourth Amendment, 20th-century court decisions have made clear that Americans' electronic communications are covered within the sphere of privacy protected by the Fourth Amendment's edict.

This principle undergirding the Fourth Amendment has withstood withering challenges by various American presidents over the decades. Especially in the second half of the 20th century, one president after another—Republican and Democrat alike—sought to push the envelope of executive power by using the ever-more-intrusive tools of modern technology to gather information on and about the citizenry, and then use that information to convict, control or intimidate people.

Throughout this long battle to limit the power of the government and protect the privacy of the people, the federal courts have served as official referees. It has not always been a pretty sight, but our courts have generally stepped in when necessary and done the right thing, correctly interpreting the Fourth Amendment as it applies to executive branch action or legislative branch lawmaking to ensure the essential privacy principle embodied therein retains its meaning. In fact, in mid-August a federal court judge declared the administration's five-year-long program of warrantless eavesdropping by the National Security Agency to be unconstitutional.

Now, in large measure as a result of that decision, which infuriated the president, the legal mechanisms that have been available for the courts to hold successive presidents' lust for power in check are about to be dismantled.

The House of Representatives last week passed legislation—and the Senate is poised to do likewise when it returns from its election recess for an always-dangerous lame-duck session —that shatters the foundation of the Fourth Amendment as surely as if a keg of dynamite were lit beneath it and allowed to explode. In the name of "fighting terrorism" the Bush administration appears to have succeeded in convincing Congress that to succeed in the "Global War on Terror," the Fourth Amendment must not only yield, but be destroyed.

The legislation, ostensibly to authorize this president and future presidents to listen in on communications by al-Qaida terrorists and those in communication with them, sweeps far more broadly than its proponents would have the American people believe. Relying on broad and vague definitions and enumerations of powers, the legislation championed by the Bush administration and supported by its many champions in the Congress would, among other things:

• Allow warrantless surveillance of virtually any international phone call and e-mail of American citizens without any evidence of conspiracy with al-Qaida or other terrorist entities.

• Authorize the attorney general without court approval to order Internet service providers and other types of companies to give the NSA access to communications and equipment regarding information on its customers, without any proof that American customers whose communications are acquired are conspiring with terrorists.

• Allow warrantless physical searches of Americans' homes for extended periods without any evidence presented to a court that the homeowner is conspiring with or connected to terrorists.

• Define "agent of a foreign power" and "weapon of mass destruction" far more broadly than under current law, and far more broadly than necessary, so as to potentially justify warrantless surveillance on persons or companies that possess quantities of gunpowder or maintain information on the conduct of our country's "foreign affairs."

Taken as a whole, the powers thus sought by the administration, and which have already been given imprimatur by the House, would do irreparable damage to the underpinnings of the Fourth Amendment.

If signed into law, these measures would destroy the fundamental notion that American citizens enjoy a right to privacy in their homes, persons and businesses to be free from arbitrary government surveillance and searches. That may sound apocalyptic, but believe me, it is not. It is a fact.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.