When Congress enacted the Stored Communications Act of 1986 (SCA), it claimed the statute would guarantee the privacy of digital data that service providers were retaining in storage. The act prohibited the providers from sharing the stored data, and it prohibited unauthorized access to the data, commonly called computer hacking – except, of course, if the recipients or the hackers were working for the federal government.
Just as it did with the Patriot Act of 2001 – which permits one federal agent to authorize another to conduct a search of stored data, without a judicially issued search warrant – the SCA permits judges to issue “orders” for searches without meeting the probable cause standard required by the Fourth Amendment.
Just like the Patriot Act – which in its original form prohibited the recipient of agent-issued search warrants, called National Security Letters (NSLs), from telling any persons of their existence – the SCA requires judges who issue orders for a search, upon the request of the government, to bar the custodian of the data who has received the order from informing the person whose data is sought.
What if the person whose data is sought has a claim of privacy on the data? What if the owner and creator of the data relied on the Fourth Amendment to keep the government’s hands off of it? What if that person was the President of the United States at the time he created the data? What if he has a claim of executive privilege on it? What if all persons have a privacy claim on all stored data and have a right to resist the government’s efforts to seek it?
Here is the backstory.
Is a judicial order for data under the SCA a search warrant under the Fourth Amendment? It is, after all, a judicial order directing and authorizing an official of the executive branch to surveil and seize private property, and it does specifically describe the place to be searched or the thing to be seized. But, because it is not based on probable cause of crime as the Fourth Amendment requires, the short answer is: No.
In United States v. Carpenter (2018), the Supreme Court ruled that orders for data based on governmental need, rather than probable cause of crime, are constitutionally defective and the data cannot be used at trial.
But the government, which knows how to evade an uncomfortable constitutional provision or Supreme Court opinion, has continued to use the SCA as a means around them. This became apparent this week in a case before the Supreme Court involving former President Donald Trump, Jack Smith and Elon Musk.
Two years ago, Smith, the Special Counsel prosecuting Trump for alleged Jan. 6 crimes, obtained an order from a federal judge in Washington, D.C., directing X – formerly known as Twitter – to surrender copies of communications sent and received by Trump in January 2021, and prohibiting X from informing Trump. This was not a search warrant, as it was not based on probable cause of crime. It was an SCA order based on governmental need.
The SCA is unconstitutional on its face. This is so because it directly defies the Fourth Amendment, which guarantees privacy by requiring a showing under oath of probable cause of crime as the absolute precondition of all government searches and seizures. Nevertheless, X complied with the order, but filed a secret application with the judge who issued it seeking to vacate the order for silence.
Government orders for silence have a long and troubled history. The same First Amendment that prohibits Congress from infringing upon the freedom of speech also prohibits the government from compelling speech. If Congress cannot infringe upon or compel speech, how can it compel silence? It cannot constitutionally do so.
In 2005, in Bridgeport, Connecticut, two elderly librarians were at work one day when two young men walked into the library and identified themselves as FBI agents. They handed one of the librarians an NSL, which had been authorized by their boss. After the librarian who received the NSL handed it to her colleague, the agents threatened to arrest both of them for violating the Patriot Act’s command of silence.
The Patriot Act prohibited the recipient of an NSL from telling anyone – even a lawyer – of the receipt of it. The feds in Bridgeport were looking to discover who had read certain books. What? These were government-owned books in a government-owned library; how can reading them be a crime? Moreover, the right to read is a fundamental liberty protected by the First Amendment from government infringement without due process and by the Fourth Amendment from government surveillance without a search warrant.
When the librarians sued for the right to discuss the receipt of the NSL, the feds charged them with criminal violations of the Patriot Act by discussing the receipt of the NSL with their lawyers.
After a federal district court granted and a federal appellate court upheld the relief the librarians sought, and the criminal case against them was dismissed, Congress amended the Patriot Act to permit recipients of NSLs to discuss them with counsel. By then, five different federal judges had declared the silence provisions of the Patriot Act unconstitutional.
That should have been the end of commands for silence, but it wasn’t.
When lawyers for X argued that the SCA infringed upon Musk’s freedom of speech to tell Trump what the feds were up to, a federal district court rejected that argument and a federal appellate court upheld the rejection. X appealed to the Supreme Court, and the court – without an opinion or a dissent – declined to hear X’s appeal.
Here we go again. Doesn’t the Constitution mean what it says? Of what value are constitutional guarantees if those in whose hands we repose them for safekeeping secretly and repeatedly decline to do so? How does this end?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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