Justice Department Has Decided 4th Amendment Doesn’t Apply

Any Twitter user knows that, instead of “tweeting” in an open forum, he can send a private message to another user. According to the FBI and the Department of Justice, if you believe that to be the case, you are wrong. There is no such thing as a private message on Twitter.

If someone could send a private message on Twitter, then the Department of Justice would have to follow the wording of the Fourth Amendment in the Bill of Rights.

“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.”

So a private message would be a “paper” or “effect.” The government would need a warrant to grab it off the internet. It would have to support that warrant by a description of what it was trying to obtain. It couldn’t say, “We want to check this tweeter out and see if he is doing something wrong.” The investigator would have to explain what he thinks he will find.

But, again, the FBI and the Justice Department deny that you are able to send a private message on Twitter. They also deny you can send a private Facebook message. As Cnet reports:

“The U.S. Department of Justice and the FBI believe they don’t need a search warrant to review Americans’ e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal. Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they’re not legally required to obtain search warrants for e-mail… The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena – a piece of paper signed by a prosecutor, not a judge – Is sufficient to obtain nearly ‘all records from an ISP.’ And the U.S. attorney in Houston recently obtained the ‘contents of stored communications’ from an unnamed Internet service provider without securing a warrant signed by a judge first.”

I highlighted Notice that the government agencies have been basically giving themselves authority on their own authority without any public argument or notice. If there are any arguments about the Fourth Amendment they are all kept private so that there is no public scrutiny or accountability–until some group of citizens forces them to reveal what they have been doing.

Bear in mind, despite the attempt at secrecy, the courts have ruled on this issue. The Justice Department, rather than obey the court’s decision, has continued to make the same claims against the rights of the American people:

“The Justice Department’s disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents ‘may subpoena’ e-mail records from companies ‘without running afoul of’ the Fourth Amendment.”

I realize that some people will side with the Justice Department for the sake of keeping us safe. But even supposing the government were competent to protect us, that argument could support the immediate imprisonment of everyone. There are many things the government can do to keep us safe, but that doesn’t mean that they are the right things to do.

If the government wants to protect us from aggression and crime, they need to show that they don’t want to commit crimes against the Constitution or to aggress against our privacy.