Time for another musty, Dead-White-Man text from the 18th century:
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.
This is the text of the Fourth Amendment to the United States Constitution, added to that document Dec. 15, 1791, when Virginia became the 11th of the original 13 states to ratify the 10 amendments known as the Bill of Rights.
It is worth reviewing because it has been forgotten.
When The New York Times broke the story in December that the Bush Administration had sanctioned wiretapping without warrants, commentators from all sides jumped on the paper. Predictably, those on the right, following the Fox News line, argued that Democratic presidents Carter and Clinton had issued similar wiretap orders. And, following the administration's talking points, they claimed that the Times had done a grave disservice to our safety by alerting "evildoers" to the clandestine surveillance, just as that liberal media once had alerted Osama bin Laden not use his satellite phone by reporting that we were eavesdropping. All of this is nonsense: Carter and Clinton's spying orders had caveats about following constitutional procedures, and it has been well-documented that Bin Laden had stopped using his satellite phone long before any report appeared about the U.S. surveilling his conversations. Media Matters for America (mediamatters.org) has been all over this.
Bin Laden and his minions might be loony, but they are not stupid. They surely know that the Foreign Intelligence Surveillance Act allows the government to wiretap 72 hours before approaching the Foreign Intelligence Surveillance Court for a retroactive warrant. They probably even know the Bush Administration well enough to figure that it cares not a whit for the "freedoms" it so cavalierly violates while accusing terrorists of targeting them.
Meanwhile, though, talking heads to the left excoriated the Times for acquiescing to the administration's request to hold the story, as it did for more than a year. Imagine, they cried, how this news might have affected the 2004 election! Yeah, right—we just did not have enough reasons to distrust Bush and his buddies back then, and news that they were flouting the Fourth Amendment could have put John Kerry over the top. No, the sad reality is that most Americans do not care about the Constitution or its Bill of Rights, if they know about them at all.
So we have little cause to hope that Google's defiant stand against the government will galvanize anger. The San Jose Mercury News broke the story last week that the Justice Department has subpoenaed records from search-engine companies to support an oceanic fishing expedition in defense of the 1998 Child Online Protection Act, which has been challenged by the American Civil Liberties Union. According to the ACLU, Microsoft, AOL and Yahoo! have complied with the request. Each of those companies has issued qualifying disclaimers about the extent of its cooperation, asserting that no individual can be identified through the data supplied. But this is thin comfort. Reporting on these developments, Silicon.com quotes the concern of Ohio State law professor Peter Swire: "The more [the government] can figure out who the surfers are, the more people's First Amendment rights are in jeopardy." Let's not forget those secured by the Fourth, either.
Already we have sufficient reason to suspect some online services when it comes to complying with government intrusion into private lives. Google, Microsoft and Yahoo! willingly block access to news sites by Chinese web-surfers. Last year, Yahoo! provided to a Chinese court the name of a journalist who had used its service to post a message critical of the government, helping sentence the journalist to 10 years in prison. Yahoo's take on this? The Times quoted Jack Ma, who heads Yahoo! in China: "Business is business. It's not politics."
How long before we hear echoes of that cynical comment on these shores? Assuming, that is, we are allowed to hear it.
Of course, the tired counter-argument is that if you have nothing to hide, you have no reason to worry. The Fourth Amendment ought to provide reason enough, but if you are among those inclined to support the president in the War on Terror, or whatever we're calling it this week, consider warrantless searches and unrestricted data-mining in the hands of your political opponents. Then you might begin to get a picture of what it means to be a conservative. It used to mean steadfast defense of the Bill of Rights, but both conservatives and liberals already have surrendered vast swaths of its territory in strategizing another notional War, the one "on Drugs."
So good luck, Google. Here's to hoping someone on the Roberts-Alito Supreme Court cares about the Fourth Amendment.
Chuck Twardy has written for newspapers and magazines for more than 20 years. His website,
www.members.cox.net/theanteroom, has a forum.