After 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the FISA court and get a search warrant for the electronic records of any American who might communicate with a foreign person.
In 30 years, from 1979 to 2009, the legal standard for searching and seizing private communications — the bar that the Constitution requires the government to meet — was lowered by Congress from probable cause of crime to probable cause of being an agent of a foreign power to probable cause of being a foreign person to probable cause of communicating with a foreign person. Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the present standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.
Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so. These laws — just like the ones that let British soldiers write their own search warrants — were validly enacted, but they are profoundly unconstitutional. They are unconstitutional because they purport to change the clear and direct language in the Constitution, and Congress is not authorized to make those changes.
These laws undermine the reasons the Constitution was written, one of which was to guarantee the freedom to exercise one’s natural rights. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away — not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.
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