It’s been a staple of science fiction at least since George Orwell’s “1984” that a day may come when a government bureaucracy will grow so huge and unaccountable that it simply intervenes in people’s lives and privacy at will, with no limits.
Sadly, that day may already be here.
The ACLU, in one of its rare showings of true civic responsibility, has divulged information it obtained from the IRS through a Freedom of Information Act request, showing the IRS teaches its employees that they can traipse in and out of Americans’ emails, text messages and other electronic communications without a warrant.
According to an IRS handbook printed in 2009, the year President Obama took office, the Fourth Amendment does not apply to electronic forms of communications because people using the Internet “do not have a reasonable expectation of privacy in such communications.”
Government agencies for years have sought such power to invade Americans’ privacy by reading private communications at will. They have been limited in part by the Electronic Communications Privacy Act of 1986, which required a subpoena, but not court approval, for agencies plundering emails.
A federal appeals court ruling in 2010 found that police had violated the Fourth Amendment rights of a man whose email was read without a warrant. The case is U.S. v. Warshak.
Despite the ruling, however, the IRS kept its policy of warrantless searches in place in a 2011 update of its handbook.
An October 2011 memo that was among documents obtained by the ACLU features an argument from an IRS attorney that the Warshak decision only applies in the Sixth Circuit, covering Kentucky, Michigan, Ohio and Tennessee.
The attorney did at least note that a legal challenge to the IRS policy could result in lengthy litigation, but not that the agency could be violating Americans’ rights.
The Fourth Amendment is pretty straightforward: “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.”
The amendment grew out of experiences during the Revolutionary War, when British soldiers could simply barge into a business or home, toss the place for incriminating evidence and haul away the colonists on any trumped-up charge they could think up.
Obviously, the Founding Fathers couldn’t anticipate computers and email, but the use of the word “papers” is clearly intended in the sense of “communications” in some sort of permanent form. Emails, voicemails, etc. seem like they should qualify.
Instead, like virtually every other part of the Constitution, the Fourth Amendment is increasingly being subverted and ignored by the very government that is supposed to defend it.
The giant National Security Agency information storehouse that has been built in Salt Lake City is said to be capable of permanently storing every form of electronic communication in the United States for later retrieval by any government agency that feels the need to tiptoe through your personal business.
Government in the U.S. has always been said to be “of the people, by the people and for the people.” So the current growth of Big Brother’s spying capabilities raises some urgent questions: Why are we doing this to ourselves? Why would we choose to live in a police state?
Is it fear? These sorts of measures are usually couched by government in terms of public safety.
Americans need to be reminded of Ben Franklin’s words, that those who would give up their freedom for a little imagined safety deserve neither safety nor freedom.