Obama Continues His War on the Fourth Amendment

The Obama administration wants legislation enacted that will punish Internet service providers who fail to cooperate with FBI requests and court orders. The FBI has revealed that its agents often "lack the time" to obtain search warrants, and so they have gotten into the bad habit of asking Internet service providers to let them in without warrants.

This was notoriously done in the Bush-era, during which the feds promised immunity to telephone service providers that enabled the feds to spy on their customers. That spying was criminal and gave rise to civil causes of action for damages, as well, until Congress changed the law retroactively and granted the promised immunity after the Bush administration spying was exposed.

Some telephone providers declined the government requests then, and some Internet providers decline these requests today. Hence, the proposed legislation would punish those providers who protect the privacy of their customers by telling the FBI to go home.

The second category of punishment sought by the administration is for Internet service providers as to which the FBI has obtained a warrant. A search warrant typically authorizes the government to enter private premises and look for the specific items designated in the warrant. But it does not require the custodian of those specific items to find them for the government. This proposed legislation would change all that.

The government has subtly revealed that when it comes to digital data it often does not know what it is looking for, and its agents lack the skills to hook into the Internet providers' systems. This raises another set of questions, likely to escape members of Congress as they examine this latest assault on the Fourth Amendment.

The Framers were very careful when they wrote the Fourth Amendment, as it imposes the most explicit requirements on the government found anywhere in the Constitution. It requires that all search warrants "particularly describ(e) the place to be searched, and the persons or things to be seized." So, if the government follows the Constitution, it cannot seek what it is unable to identify, and it cannot compel the custodian of whatever records it is seeking to do its work for it.

Until now.