What's The Fourth Amendment, Again?

Under President Bush, one of the most controversial of his administration’s anti-terrorism tactics was wiretapping. It ticked off some on the right, worried some in the middle and made the left rage uncontrollably. Now, after falling in line with the Bush administration last year on wiretapping, against his campaign promise– and, according to this writer, even going further than the Bush administration- President Obama’s Department of Justice is going after cellular phones.

The article gets technical, but essentially the Justice Department will be defending its claim in court tomorrow that “warrantless tracking is permitted because Americans enjoy no

reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

This is kind of a scary proposition. I was never very comfortable with wiretapping under Bush, and the more I’ve learned the less comfortable with it I am. However, at least that seemed to have been aimed at people setting off alarm bells within the intelligence community through the use of certain words, calls to certain countries, etc. In this case, the Justice Department seems to claim that the use of privately-owned cell phones negates personal privacy and, unfortunately, is not alone in doing so. According to the article,

U.S. District Judge William Pauley, a Clinton appointee in New York, wrote in a 2009 opinion that a defendant in a drug trafficking case, Jose Navas, “did not have a legitimate expectation of privacy in the cell phone” location. That’s because Navas only used the cell phone “on public thoroughfares en route from California to New York” and “if Navas intended to keep the cell phone’s location private, he simply could have turned it off.”

One can almost see the legitimacy of the judge’s argument- it is a public road that the person was making a call on. However, in that case, wouldn’t the right to privacy be irrelevant in all cases where citizens are pulled over? After all, almost all roads are public, and the vast majority DWI, DUI, speeding tickets and other driving-related punishments are done on these public roads. Yet, the citizen’s right to privacy is protected in these cases.

When it comes down to it, the Department of Justice is far out of line. Get a warrant to look at records, or don’t look at them at all. If need be, set up a system where the legal permission may be granted in an accelerated fashion. This current claim by the DOJ is bogus, and President Obama needs to remind Attorney General Holder that he serves the people, not his own sense of power. If Obama refuses to do so, then we the people need to remind him he also serves us.