I rise today in support of the Fourth
Amendment Protection Act. The Fourth Amendment guarantees the right of the
people to be secure in their persons, their houses and their papers and their
effects against unreasonable searches and seizures.
John Adams considered the fight against
general warrants, or what they called in those days 'writs of assistance,' he
considered this fight to be when the child Independence was born. Our independence
and the Fourth Amendment go hand in hand. They emerge together. To discount or
to dilute the Fourth Amendment would be to deny really what constitutes our
very republic.
But somehow along the way, we became
lazy and haphazard in our vigilance. We allowed Congress and the courts to
diminish our Fourth Amendment protections, particularly when we gave our papers
to a third party. Once you gave information to an Internet provider or to a
bank. Once we allowed our papers to be held by a third party, such as telephone
companies or Internet providers, the courts determined that we no longer had a
legally recognized expectation of privacy.
Now, there have been some dissents over
time. Justice Marshall dissented in the California Bankers Association v. Shultz
case, and he wrote these words - "the fact that one has disclosed private
papers to a bank for a limited purpose within the context of a confidential
customer-bank relationship does not mean that you have waived all right to the
privacy of your papers."
But privacy and the Fourth Amendment
have steadily lost ground over the past century. From the California Bankers
Association case to Smith v. Maryland to U.S. v. Miller. The majority has ruled
that your records, once they are held by a third party, don't deserve the same
Fourth Amendment protections. Ironically, though, digital records seem to get
less protection than paper records. As the National Association of Defense
Attorneys has pointed out, since the 1870's, the government must get a warrant
to look and read your mail, as is the case of Katz v. The United States, the
government has been required to have a warrant to tap your phone. However,
under current law, your e-mail, your text messages and other electronic
communications do not receive the same level of protection as your phone calls
do. Why is a phone call deserving of more protection than your e-mail or your
text? Justice Sotomayor in U.S. v. Jones, the recent supreme court case that
says the government can't put a GPS tracking device on your car without a
warrant says this - "I for one doubt that people would accept without
complaint the warrantless disclosure of the government to the government of a
list of every website they have visited in the last week, month or year. I
would not assume that all information voluntarily disclosed to some member of
the public for unlimited purpose is for that reason alone disentitled to the
Fourth Amendment protections.
Justices Marshall and Brennan,
dissenting in Smith v. Maryland said in emphasizing the dangers in giving up
Fourth Amendment protections, they wrote -- "the prospect of government
monitoring will undoubtedly prove disturbing, even to those with nothing
illicit to hide. Many individuals, including members of unpopular political
organizations or journalists with confidential sources, may legitimately wish
to avoid disclosure of their personal contacts."
In Miller and in Smith, the Supreme
Court held that the Fourth Amendment did not protect records held by third
parties. Sotomayor wrote in the jones case that it may be time to reconsider
these cases, reconsider how they were decided, that their approach is, in her
words, ill-suited to the digital age in which people reveal a great deal of
information about themselves to third parties in the course of carrying out
mundane tasks.
Today, this amendment that I will
present, the Fourth Amendment Protection Act, does precisely that. This
amendment would restore the Fourth Amendment protection to third party records.
This amendment would simply apply the Fourth Amendment to modern means of
communications. E-mailing and text messaging would be given the same
protections we currently give to telephone conversations. Some may ask well,
why go to such great lengths to protect records? Isn't the government just
interested in the records of bad people?
Well, to answer this question, you must
imagine your Visa statement and imagine what information is on your Visa
statement. From your Visa statement, the government may be able to ascertain
what magazines you read, whether you drink and how much, whether you gamble and
how much, whether you're a conservative, a liberal, a libertarian, whom do you
contribute to, who is your preferred political party, whether you attend a
church, a synagogue or a mosque, whether you see a psychiatrist, what type of
medication do you take. By poring over your Visa statement, the government can
pry into every aspect of your personal life. Do you really want to allow your
government unfettered access to sift through millions and millions of records
without first obtaining a judicial warrant? If we have people who are accused
of committing a crime, we go before a judge and get a warrant. It's not that
hard.
I'm not saying we won't be allowed to
look through records, but I'm just saying that the mass of ordinary, innocent
citizens should not have their records rifled through by a government who does
not first have to ask a judge for a warrant before they look at your personal
records.
We have examples in the past, in our own
country, of abuses of government. During the civil rights era, the government
snooped on activists. During the Vietnam era, the government snooped on antiwar
protesters. In a digital age where computers can process billions of bits of
information, do we want the government to have unfettered access to every
detail of our lives? From your Visa statement, the government can determine
what diseases you may or may not have, whether you're I impotent, manic,
depressed, whether you're a gun owner, whether you buy ammunition, whether
you're an animal rights activist, whether you're an environmental activist,
what books you order, what blogs you read, what stores or Internet sites you
look at. Do you really want your government to have free and unlimited access
to everything you do on your computer?
The Fourth Amendment was written in a
different time and a different age, but its necessity and its truth are
timeless. The right to privacy, and for that matter, the right to private
property, are not explicitly mentioned in the Constitution, but the Ninth
Amendment says that the rights not stated are not to be disparaged or denied.
James Otis, arguably the father of the Fourth Amendment, put it best when he
said one of the most essential branches of English liberty is the freedom of
one's house. A man's house is his castle, and while he is quiet, he is as
well-guarded as a prince in his castle. Today's castle may be your apartment,
and who knows where the information is coming from. It may be paper in your
apartment, but it may be bits of data stored who knows where, but there is a
reason why our government should be restrained from invading a sphere of
privacy that is a timeless concept. Over the past few decades, our right to privacy
has been eroded. The Fourth Amendment Protection Act will go a long way to
restoring this cherished and necessary right.
I hope that my colleagues will consider
supporting, defending and enhancing the Fourth Amendment, bringing it into a
modern age when modern electronic and computer information and communications
are once again protected by the Fourth Amendment. Thank you, and I reserve the
balance of my time.
4:59 p.m. | Updated Senator Rand Paul, Republican of Kentucky, began an old-school, speak-until-you-can-speak-no-more filibuster on Wednesday just before noon, and was still going strong hours later.
