In the midst of revelations that the Federal Government has been indiscriminately spying on who millions of Americans call on their telephones and how often, President Obama said yesterday, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.”
The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy. Surely, it is a serious privacy intrusion to collect information about the associations of millions of Americans without probable cause. This is an area where privacy and the First Amendment guarantee of freedom of association run together.
The notion that we should trust federal judges to uphold the Fourth Amendment is impossible to take seriously. As the Supreme Court stated in United States v. Miller, “This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This third party principle permits the Federal Government without probable cause or even reasonable suspicion and without any notice to you: to get all of your bank records, a record of who you have sent mail to and received mail from, and who you have phoned and who phoned you. Indeed, the third party principle allows the F.B.I. to search your garbage without probable cause. Why don’t these actions violate the Fourth Amendment? The courts we are supposed to trust, according to the President, say these actions revealing intimate details of our private lives are not “searches” within the meaning of the Fourth Amendment. The claim is that we have no reasonable expectation of privacy in material we have exposed to a third party like a bank, a post office, or an internet provider. This line of reasoning is worthy of a totalitarian state. That I use a credit card and the bank is aware of the transactions should not remotely suggest that I have no reasonable privacy interest in the bank's making the material available to others.
So no I do not trust the Federal courts to enforce the Fourth Amendment. Fortunately, what the Federal courts permit need not be what law enforcement agencies are permitted to do. Many states have refused to follow the Supreme Court’s lead and afford greater protection for privacy. Moreover, the Congress can provide limits on the third party principle. And, indeed, no one forced the President to follow the third party principle. Do I expect the Congress to reject the third party principle? No. But I do think it is imperative for the public to renounce this utterly immodest and shameless invasion of privacy.
Am I supposed to trust you Mr. President with the Constitution, the President who after saying he would abandon the Bush program of spying, secretly maintained it? No Mr. President, I do not trust you.