Founding Principles, Legal Precedent, and the NSA

Overly Attached NSA

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

— 4th Amendment to the U.S. Constitution

In pre-Revolutionary America, the British empire would regularly search colonists’ persons, houses, papers, and effects without reprieve or oversight. This was accomplished by the issuance of “writs of assistance,” also called “general warrants” in today’s terms. These often did not come with time restrictions, detailed descriptions of what was to be searched and seized, instructions for the manner in which to carry out the search, or identification of who was responsible for conducting the search. Oftentimes, these writs were transferable between persons, and could change hands many times before expiring with the King’s death.

The warrants were issued in pursuit of a noble goal: to stop illegal smuggling. American colonists, however, did not appreciate such sweeping violations to their privacy. While British citizens enjoyed some warrant protections, colonials were subjected to these overbearing and overly broad general warrants. These gross governmental intrusions by Great Britain further stoked the flame that would conflagrate into the birth of our nation.

After the American Revolution and subsequent ratification of the Constitution, the nation demanded a Bill of Rights to check its new government’s power. The Bill of Rights, and with it the 4th Amendment, were adopted to ensure that the people and their posterity were to be protected from unreasonable government searches and seizures.

In the 200+ years that followed, the Amendment saw itself before numerous courts and countless judges. One after another, exceptions were added and interpretations changed but the core concepts remain intact. The use of general warrants is almost always curtailed due to their vagueness and potential for abuse.

Recent actions by the National Security Agency are eerily reminiscent of the general warrants used by the Great Britain. The dragnet acquisition of data without probable cause is an abhorrent violation to every American’s right to be secure in their person, houses, papers, and effects. However, there is legal recourse, if the NSA were dragged into court and forced to answer for these actions, they would need to overcome a mountain of Supreme Court precedent.

To start, in Katz v. United States (1967) the Supreme Court upheld that the government must obtain a warrant whenever they are to invade an area where a citizen has a “reasonable expectation of privacy.”

The court overruled the previous decision in Olmstead v. United States (1928) which declared wiretaps to be beyond the 4th Amendment’s protection. In the case of Katz, the Court held that wiretaps without a warrant are, indeed, forbidden by the Bill of Rights. Government officials would be required to obtain a warrant if they are to search within a citizen’s reasonable expectation of privacy.

This requirement was further extrapolated in United States v. U.S. District Court (1972) where the Supreme Court held that even if it was a matter of domestic security, government officials are still required to obtain a warrant before conducting electronic surveillance. Even with all of these prior rulings, the NSA’s actions have yet to come before the Supreme Court.

In the current controversy, the ACLU, as well as FreedomWatch USA, have filed suit against the NSA and the matter will likely come before the Supreme Court of the United States. Only after running the judicial gamut will the case end up there, but for now, I am confident that the ACLU has the evidence it needs to convince the court of the NSA’s unconstitutional actions; barring, of course, another surprise decision like we saw in National Federation of Independent Business v. Sebelius (2012), which found the individual healthcare mandate to be constitutional. Regardless of the outcome, good Americans must continue to fight such egregious invasions of privacy. 

Although the NSA is acting in pursuit of a noble goal, the prevention of terrorism, such actions must not sacrifice our founding principles.

If history is to be our teacher, and the Revolution our lesson, it should be clear to every American that the NSA has grossly overstepped its boundaries. In the words of Supreme Court Justice Louis Brandeis:

Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

— Dissenting opinion in Olmstead v. United States (1928)

Content published on the Young Americans for Liberty blog is only representative of the opinions and research of the individual authors. It does not necessarily reflect the views, goals, or membership of YAL. 

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