If this question had been asked by a fictional
character in a spy thriller, it might intrigue you, but you wouldn’t
imagine that it could be true in reality. If the Constitution means what
it says, you wouldn’t even consider the plausibility of an affirmative
answer. After all, the Fourth Amendment to the Constitution was written
to prevent the government from violating on a whim or a hunch or a
vendetta that uniquely American right: the right to be left alone.
Everyone wants, at some point in the day, at some
places in the home, to be left alone. The colonists who fought the war
of secession from Great Britain were no different. But that war and the
wish to keep the government at bay had been heightened by the colonial
experiences involved in the enforcement of the Stamp Act.
That law, which applied to the colonies and not to
residents of Great Britain, required that government stamps be purchased
and printed on all legal, financial, and even political documents in the
possession of every colonist. The enforcement of that law — which was
done by British soldiers who entered private homes armed not only with
guns but also with search warrants that they had written for themselves,
which Parliament authorized them to do — was so disturbing and
resulted in such anti-British political animosity that Parliament
eventually rescinded the act.
But the damage to British rule had been done, and it
was irreparable. After the Founders won the Revolution and wrote the
Constitution and added the Bill of Rights, they rested in the assurance
that only judges could issue search warrants “particularly describing
the place to be searched and the persons or things to be seized,” and
that judges could only do so if they found probable cause of criminal
behavior in the place the government targeted.
The War on Drugs has regrettably weakened the
intended protections of the Fourth Amendment, and the Patriot Act —
which permits federal agents to write their own search warrants — has
dealt it a serious blow. That act, which has not yet been ruled upon by
the Supreme Court, fortunately has not yet animated the Supreme Court’s
privacy jurisprudence. Last year, the court invalidated the police use
of warrantless heat-seeking devices aimed at the home, and it will
probably soon invalidate the warrantless use of GPS devices secretly
planted by cops in cars.
Regrettably, unless the government attempts to use
the data it has illegally gathered about a person, the person probably
will not be aware of the government’s spying on him, and thus will not
be in a position to challenge the spying in a court. Relying on the
PATRIOT Act, federal agents have written their own search warrants just like the British soldiers did. They have done this
more than 250,000 times since 2001. But the government has rarely used
any evidence from these warrants in a criminal prosecution for fear that
the targeted person would learn of the government’s unconstitutional
and nefarious behavior, and for fear that the act would be invalidated
by federal courts.
Now, back to the CIA in your kitchen. When Congress
created the CIA in 1947, it expressly prohibited the agency from spying
on Americans in America. Nevertheless, it turns out that if your
microwave, burglar alarm, or dishwasher is of very recent vintage, and if
it is connected to your personal computer, a CIA spy can tell when you
are in the kitchen and when you are using that device. The person who
revealed this last weekend also revealed that CIA software can learn
your habits from all of this and then anticipate
them.
Acting “diabolically” and hoping to “change
fingerprints and eyeballs” in its “worldwide mission” to steal and keep
secrets, the CIA can then gut the Fourth Amendment digitally, without
ever physically entering anyone’s home. We already know that your
BlackBerry or iPhone can tell a spy where you are and, when the battery
is connected, what you are saying. But spies in the kitchen? Can this be
true?
Who revealed all this last weekend? None other than
Gen. David Petraeus himself, President Obama’s new director of the CIA. I
wonder whether he knows about the Fourth Amendment and how the Supreme
Court has interpreted it and that federal laws prohibit his spies from
doing their work in America. I wonder whether he or the president even
cares. Do you?
COPYRIGHT 2012 ANDREW P. NAPOLITANO. DISTRIBUTED BY CREATORS.COM.
