Why Bush Violated the Fourth Amendment, and Obama Has Not

[DonViejo]

by Geoffrey R. Stone Jul 1, 2013 4:45 AM EDT

The reasonable expectation of “privacy” has evolved since the Court coined the concept in 1967 – and Obama’s actions have respected that expectation, writes Geoffrey R. Stone.

There is a crucial difference between the Obama administration’s phone call data-mining program, which is constitutional under current law, and the Bush administration’s NSA surveillance program, which was clearly unconstitutional. Unlike the Obama program, which is limited to obtaining information about phone calls made and received from telephone companies, the Bush program authorized the government to wiretap private phone conversations. From a constitutional perspective, the difference is critical, and it is unfortunate that President Obama has not done a better job of explaining the distinction, and why his administration’s program does not violate the constitutional “right of privacy.

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Supreme Court has held that, at least presumptively, a search is “unreasonable” unless it is based on probable cause and a judicial warrant.

It would therefore seem that it violates the Fourth Amendment for the government to collect phone call records from phone companies without first obtaining a judicial warrant based on a finding that there is probable cause to believe that the individual whose call records the government want to examine has committed a crime. This would be true, for example, if the government wanted to open that individual’s mail or search his home or wiretap his phone calls, so why isn’t it true in this situation as well?

The puzzle turns on the meaning of the word “search.” The Fourth Amendment does not protect a general right of privacy, but only a right not to have the government unreasonably search an individual’s person, house, papers, or effects. But what is a “search”?

The Supreme Court first confronted the meaning of “search” in its 1928 decision in Olmstead v. United States. In that case, the Court held that a wiretap of a phone call was not a “search” within the meaning of the Fourth Amendment because it did not involve a physical intrusion into a constitutionally protected place. The Court explained that what the Framers meant by a “search” was a physical intrusion into an individual’s pocket, briefcase, home, or envelope. A wiretap, which is effected without entering the suspect’s home, is therefore not a “search” for purposes of the Fourth Amendment. Thus, the government could constitutionally wiretap phone calls without either probable cause or a warrant as long as it did not physically enter the target’s home or business.

full article
http://www.thedailybeast.com/articles/2013/07/01/why-bush-violated-the-fourth-amendment-and-obama-has-not.html

[bowens43]

1. Nonsense

It is Clearly unconstitutional. All the spinning in the world won't change that

[Demeter]

3. Second that

and the parts we DON'T know about are sure to be worse.

[truebluegreen]

5. +100 n/t

[dennis4868]

2. Great read

Thanks for posting. It was very informative!

[Enrique]

4. the FISA court has ruled some NSA activities unconstitutional

during Obama's presidency. That court ruling is classified.

Why didn't Prof. Stone mention this ruling? Maybe because I am misunderstanding, maybe it is not relevant to what he writes. Or maybe it's because he is strongly connected to Obama, way back over ten years. He was the person that hired Obama to work at U of C law school.

Nothing against this professor, I'm sure he's a fine one. But I'm sure also that Michelle Obama is an outstanding lawyer and if she wrote an editorial justifying her husband's actions it wouldn't be very useful, imho.

[MotherPetrie]

6. Puh-leeeeeeeeeze.

[phleshdef]

7. No one objecting to what this writer is saying has actually attempted to counter his argument.

If you are gonna say something is a bunch of bullshit, at least have a counter argument as to why. I think this is pretty sound legal reasoning here. I've brought this up before. When you sign up for an email account or a phone number, the terms of service you agree too usually states that data associated with your account may be turned over to law enforcement for various reasons. You willingly agree to that when you agree to the terms of service.

I still don't agree with the nature of the current NSA programs. They are too broad and should be reigned in. But lets keep the debate honest.

[Enrique]

8. i did

[davidpdx]

9. Obama?

Oh that good for nothing president, he's invaded our privacy and I can't even put my shoes on without looking for a recording device. We have no rights, no rights. America is fascist like Nazi Germany and Obama is the same as W. The banks and corporations own him and that's who elected him. We were fooled!!! Never again! And he's stalking poor Edward trying to have him killed by a drone. Why can't we get a REAL progressive elected. We were fooled I tell you, fooled!
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Oh, and btw: