I can't believe Ashcroft is trying this...(long)

Great Debates
41

Good Lord!

Stuffin, please try to confine your GD posts to debate, as opposed to gratuitous assertions.

If your point is simply that you don’t like this balance, and you believe the state of affairs now is better… well, that’s fine. But the Fourth Amendment that you so proudly quote was adopted in 1789. At that time, it meant one set of rules. Over the years, the words haven’t changed… but the interpretation of them has.

In other words… it is of no rhetorical value to quote the Fourth Amendment and claim this proposed legislation does an “end run” around it. The right to have evidence suppressed if obtained illegally, in state court, has only existed since 1961. Therefore, there were roughly 172 years in which it meant one thing, and only 40 when it meant the other. Since 172 is greater than 40, the earlier interpretation is obviously correct.

Right?

Obviously that’s foolish. But it’s no more foolish than you claiming the proposed legislation “makes a mockery” of the Fourth Amendment, or “guts it completely.” Under this view, the Fourth Amendment was “gutted completely” when it was adopted, and only effective 172 years later.

The point is that Fourth Amendment law is an evolving animal. If you have practical problems, such as manhattan’s comments about losing proprietary information, by all means share them. If you can’t point to a specific problem, but merely wish to share that this idea makes you feel icky… well, share that too, I guess. But you cannot credibly claim that theis legislation “guts” the Fourth Amendment unless you evince a far more thorough understanding of the history and application of the Fourth Amendment.

Finally, let me point out that if your interpretation is correct, we have nothing to worry about. Congress has no power to pass any law that contradicts the Fourth Amendment. If, as you say, this does, then it will be easily overturned by the Supreme Court. If they don’t overturn it, then, by definition, it does not contradict the Amendment, since they (not you or I) ultimately decide what the Constitution means.

  • Rick
42

Incidentally, the Fourth Ammendment at no point says that warrants must be made public, or that people must be notified when they are searched. I’m sure that the ACLU lawyers could make a case for how this law contradicts the Fourth Ammendment and/or the Supreme Court’s case law on it. However, I really don’t see anything in the idea of “sneak and peek” warrants that clearly violates the Fourth Ammendment. Unless this law somehow allows warrants to be issued without probable cause or searches to be conducted without warrants or warrants to be issued that do not describe the specific places to be searched, I don’t see it as gutting the Fourth Ammendment.

Not that I agree with it, I just think that it is not obviously unconstitutional.

43

According to TechTV (specifically the folks on “The Screensavers”), there is some rider (is that the right term?) to this that would make breaking into a computer punishable by life imprisonment without parole!

Talk about punishment not fitting the crime.

44

Oh, the TechTV guys got this info from Kevin Poulsen, former hacker and writer at SecurityFocus.com.

Basically, various forms of computer abuse (virii, hacking, etc.) are included under the term “terrorism”.

Here’s the story:
http://www.securityfocus.com/news/257

45

Thank you, Tuba Diva.

Here are excerpts from the text of a FAIR alert (media watchdog group).

"The American Civil Liberties Union (ACLU) warns that the Anti-Terrorism Act of 2001 includes provisions that could “deny meaningful hearings to immigrants, minimize judicial supervision of electronic surveillance by law enforcement authorities and vastly expand the government’s ability to
conduct secret searches.” In response to Attorney General John Ashcroft’s efforts to speed the bill through Congress last week, over 120 groups joined the ACLU in an unusually broad left-right coalition to urge the government
not to undermine liberty in the name of security. (See
http://www.aclu.org/safeandfree/ .)

"Despite the magnitude of the changes the bill proposes, a search of the Nexis database of news transcripts shows that neither CBS Evening News nor NBC Nightly News has aired a single report exploring the legislation’s potential impact. ABC World News Tonight has aired one.

"Ashcroft’s drive to expand wiretapping powers has been widely described as an anti-terrorism measure, but ACLU points out that under the Foreign Intelligence Surveillance Act, the FBI can already obtain wiretaps in investigations of terrorism without showing probable cause. Ashcroft’s bill
would extend this authority to ordinary criminal cases, effectively removing an important check on the FBI’s domestic surveillance efforts.

The bill would also grant the government the authority to request secret searches in any criminal case-- meaning that law enforcement could more easily search an individual’s property without notifying them. “This vast
expansion of power,” says the ACLU, “goes far beyond anything necessary to conduct terrorism investigations.”

46

Well, BlackKnight, unfortunately, I think that is a matter of interpretation. But it’s not necessarily the computer crimes that bother me so much…after all, most of the crimes that are affected by this in the computer field are harmful, and intended to do harm, or damage. They may not cost lives, but they may cost people their livelihood, or at the very least a great deal of money:

And according to the same article, these crimes are punishable by up to life imprisonment. That is the maximum sentence.
What disturbs me more is scenarios like the one that the A.C.L.U. presented in their statement:

So effectively, it becomes any damaging crime, including things like the broken window above. And computer crimes. And any number of other things. I personally won’t complain much about the computer criminals, as a computer professional who has to deal with the fallout from their actions every day. But the point here is that we cannot, must not be selective about who is at risk from these proposed laws. WE ALL ARE AT RISK. The ones who are subject to these changes in rule are ostensibly criminals. But the ordinary, law-abiding citizen is at risk from portions of the proposal as well. He is subject to surveillance and search without notification. The information obtained hereby could be released to any number of other people in other agencies, and thereby leaked to just about anyone. They can be prosecuted under RICO in what amounts to “guilt by association” with a terrorist, or someone who has committed a ‘terrorist’ action. That’s what disturbs me about the proposal. Not just harsher sentences for computer criminals.

And one of the telling points, IMHO, is the fact that, yes, the bill has been amended. But nowhere, either on the congressional sites, or the D.O.J. site, or anywhere else, can I find a copy of the amended proposal.

And here’s where I agree with Bricker… :slight_smile:
If this obviously violates the 4th Amendment, then it should be struck down in relatively short order. But waterj2 the problem with the “Sneak & Peek” warrants is that they are no longer subject to judiciary approval. They can be approved by an investigating attorney. Which means that they certainly could be issued without probable cause. This is not to say that they would be, and any that demonstrably was could probably be suppressed. But at that point the search, and possible siezure of evidence, has already been carried out, possibly with no notification. And that’s where I see the harm. Just as a theoretical: If your house is searched without notification in the course of a federal investigation, and your computer is seized, do you report it to local law-enforcement personnel? Under the assumption that it was a theft? And what then would the role of local law enforcement be? Would they have been informed? Or would they waste time attempting to track the theft? Just something to think about.

-Stil

47

Stil- on this last point you raise, I agree with you. The issuance of any warrant should be subject to judicial review by a “neutral, detached magistrate.”

Just to be clear, though, that has nothing to do with the 90-day notice section.

  • Rick
48

IANAL…

Bricker The point I was trying to make is as Stiletto pointed out. This legisaltion would remove checks on police powers. The legislation also does not effect only criminals but anyone the law enforcement decides maybe guilty of something.

It eliminates judicial review, think about that for a moment. What’s to stop police from willy nilly deciding to investigate you for something, just because they don’t like you. Not that they would, but surely you can see how this legislation can give police and other regulatory agencies the ability to violate you rights.

49

I entirely agree. I was just pointing out a specific item I had heard about. Thank you for the more comprehensive overview.

50

I agree that eliminating judicial review is a bad step - but since the courts have long held up the “neutral, detached magistrate” review as a guarantee of reasonableness, I doubt seriously that any proposed law not containing a judicial review for issuance of criminal warrants would survive a constitutional challenge.

If this is your objection as well, then it sounds as though we’re in agreement - it’s a bad idea. Perhaps our disagreement lies in the fear that the Supreme Court wouldn’t strike it down?

  • Rick
51

[QUOTE]
*Originally posted by Bricker *
**

Ammendment IV: "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."

While the Constitution is subject to changing interpretation over time, I believe that it is pretty clear that the intent of Ammendment IV is to require proof of probable cause before a Warrant for search shall be issued. It frightens and offends me that the Attorney General has proposed legislation that flagrantly obviates a portion of the Bill of Rights. In my mind, this calls into question his ability to intelligently adminster justice in the U.S. It sounds as if “Infinite Justice” translates into “Fundamentalist Attorney General knows better than the founding fathers about what is best for America”.

52

Please show me where, in the Attorney General’s proposal, the standard of “probable cause” is deleted.

It isn’t.

Please show me where, in the Fourth Amendment, it requires a judge, as opposed to a prosecutor, to determine “probable cause.” It doesn’t.

Good grief, Hairy - right now, we permit police officers to determine “probable cause” when arresting someone without a warrant, or searching a car. The Fourth Amendment permits that.

This legislation would permit a warrant to issue, upon “probable cause” - but the determination of “probable cause” would be made by a prosecutor, not a judge or magistrate.

I don’t think that’s a good idea - but it hardly “flagrantly obviates a portion of the Bill of Rights,” any more than a cop smelling marijuana and searching your car does. In that case, a judge could later decide that there was no probable cause after all and dismiss the charge – in the legislation under discussion, the same process would be available.

  • Rick
53

Bump. Waiting for something like, “Oh, my mistake,” from any of a number of posters. Perhaps they just missed the thread. Here’s another chance.

  • Rick
54

You have to excuse me I rarely post on weekends.

Got it in one! Again i’m not a lawyer, but recent Supreme rulings do not instill confidence that such a law would be struck down. Especially recent S&S cases, like the one that allows searches of passenger in stops.

55

stuffinb, thanks for the reply.

I think there’s an important distinction to make here: we’re not arguing that the proposed law is unconstitutional – after all, if the Supremes say it’s constitutional, it is. We’re suggesting that it’s simply a bad idea if the state of the law in this country moves in that direction, if the pendulum swings away from civil rights to this degree. It may be constitutional – that’s not the point. We’re saying it’s a bad idea.

I don’t have heartburn with the notice requirement business. But in criminal cases I do have a problem with removing judicial oversight for warrants.

  • Rick
56

Agreed. I’m in an industry with heavy Federal regulation, and agree that in some cases it’s neccesary. I’m uncomfortable with something like this being applied in criminal investigations.

So yes, we are in agreement.