Twice last week, the federal government’s unconstitutional spying on ordinary Americans was exposed. One of these revelations was made by a federal judge in Washington, D.C., who wrote that the FBI is still using warrantless spying in criminal cases, notwithstanding the Constitution and federal laws. The other revelation was a surprise even to those of us who monitor these things — the United States Postal Service acknowledged that it has been spying on Americans.
Here is the backstory.
The modern American security state — the parts of the federal government that spy on Americans and do not change on account of elections — received an enormous shot in the arm in 1978 when Congress enacted the Foreign Intelligence Surveillance Act. That naively misguided and profoundly unconstitutional law was sold to Congress as a way to control the security state’s spying in the aftermath of Watergate. Watergate had revealed that President Richard M. Nixon used the FBI and the CIA to spy on real and imagined domestic political adversaries.
FISA set up a secret court that authorized domestic spying by issuing warrants not based on probable cause of crime, as the Constitution requires, but on probable cause of communicating with foreign agents. Never mind that communications about noncriminal matters are protected speech; the FISA court issued tens of thousands of these warrants.
As the security state’s appetite for spying grew more voracious, its agents and lawyers persuaded the FISA court to lower the bar for issuing a surveillance warrant from communicating with a foreign agent to communicating with a foreign person, and to expand the scope of those warrants to include Americans who have communicated with other Americans who have communicated with foreign people. Under this procedure, if I call my cousins in Florence and then you call me, all of your calls could be surveilled.
Jealous of the ease with which America’s spies can obtain warrants from the FISA court, the FBI persuaded its friends on Capitol Hill to enact legislation that gives the FBI a peek at data the security state gathers — if it meets certain standards — to see if any of it pertains to criminal matters. Each one of these FBI peeks at raw intelligence data is known as a “share.”
All of this was done in utter disregard of the Fourth Amendment requirements that no search warrants shall be issued without showing under oath probable cause of crime and that all warrants shall specifically describe the place to be searched and the person or thing to be seized.
If an FBI agent sees evidence of a nonnational security crime on one of the shares, the agent will try to use it in a criminal prosecution, even though he acquired it in violation of the Fourth Amendment. If federal prosecutors want to introduce evidence from the share at trial, they need to find another source for it, as no judge will admit raw intelligence data obtained without a warrant in a criminal case.
After 9/11, President George W. Bush ordered the National Security Agency — the 60,000-person strong branch of the military that quarterbacks domestic spying — to capture every keystroke on every computer and the contents of every phone call in America. All presidents since Bush — even President Donald Trump, who was personally victimized by this spying — have continued the practice of universal, suspicionless, warrantless spying.
The NSA sharing data with the FBI is deeply troubling because it violates both the Fourth Amendment and federal law. The intentional use of FISA to obtain data about an American for nonnational security-related criminal activity is itself a criminal act as it constitutes a planned and direct violation of the Fourth Amendment by electronic means — otherwise known as hacking.
Last week, the chief judge of the FISA court revealed that for 2019 the FBI reported just one instance of sharing, even though Department of Justice auditors found 91 instances. And that number is far lower than the true number of shares since — inexplicably — the DOJ counts all shares performed by one agent as one share, even though the agent may have accessed the data of more than one American.
In August 2019, one FBI agent accessed the raw intelligence data of 16,000 Americans in order to find criminal evidence about seven of them. The FBI reported that as one share.
Also last week, the USPS revealed that its postal inspectors have been monitoring social media at random, looking for troublemakers. Since social media is publicly posted, you and I can read it at will. But the Fourth Amendment requires that the government have “articulable suspicion” about the person whose social media is being surveilled before it begins its surveillance — even surveillance of publicly available materials. This is to prevent fishing expeditions.
What articulable suspicions did the Postal Service have before its police began their surveillance? What conceivable threat to the postal mails is manifested in texts and emails (other than that the latter are infinitely faster and profoundly more efficient)? None and none.
All this shows just how corrupted America’s security state has become under presidents of both parties. From counting 16,000 as if it were one, to hacking the texts and emails of people without articulable suspicion or probable cause, to orchestrating end runs around the Fourth Amendment, to lying to federal judges about all this — we see the tactics of the East German Stasi and Soviet KGB have been reborn on this side of the Atlantic.
Of what value is the constitutional guarantee of privacy if those we have hired to protect it are themselves undermining it?
Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network, and lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom. He also writes a week column, nationally syndicated by Creators.