By: Judge Andrew Napolitano
I have been writing for years about the dangers to human freedom that come from government mass surveillance. The United States was born in a defiant reaction to government surveillance. In the decade preceding the signing of the Declaration of Independence, the villains were the Stamp Act and the Writs of Assistance Act. Today, the villain is the Patriot Act.
Here is the backstory.
In 1765, when the British government was looking for creative ways to tax the colonists, Parliament enacted the Stamp Act. That law required all persons in the colonies to purchase stamps from a British government vendor and to affix them to all documents in one’s possession. These were not stamps as we use today, rather they bore the seal of the British government. The vendor would apply ink to the seal and for a fee — a tax — impress an image of the seal onto documents.
All documents in one’s possession — financial, legal, letters, books, newspapers, pamphlets, even posters destined to be nailed to trees — required the government stamps.
How did the British government, 3,000 miles away, know if one had its stamps on one’s documents? Answer: The Writs of Assistance Act. A writ of assistance was a general warrant issued by a secret court in London. A general warrant does not specifically describe the place to be searched or the person or thing to be seized. It merely authorized the bearer — a civilian or military government official — to search where he wished and seize whatever he found.
The use of writs of assistance ostensibly to search colonial homes for stamps produced an avalanche of opposition that often turned to violence against the stamp vendors. The sheer cost of invading private homes fueled fears that the true purpose of the tax was not to generate revenue — though the king always needed cash — rather, it was to remind the colonists that the king was sovereign and his agents and soldiers could enter colonial homes on a whim.
Parliament repealed the Stamp Act in 1766, but it had caused lasting harm to the king. Harvard Professor Bernard Bailyn has estimated that by the late 1760s, one-third of the colonists favored secession from Great Britain, either peaceful or violent.
In 1789, six years after the American Revolution was won, the 13 colonies that had seceded combined into the United States of America under the Constitution. Two years later, the Bill of Rights was ratified, the Fourth Amendment of which was expressly written to prohibit general warrants — to assure that the new government would not and could not do to Americans what the British government had done to the colonists.
That assurance was manifested in the amendment’s requirements that only judges can issue search warrants, which must be based on probable cause of crime and which must specifically describe the place to be searched or the person or thing to be seized.
The history of the United States is the history of the growth of government and the loss of personal liberty. Thankfully, we eradicated slavery and recognized the equality of all people, irrespective of race or gender. Yet, in times of crisis, we have supinely permitted the federal government to invade our privacy on a scale never approached by the folks who brought the Stamp Act to our ancestors.
After 9/11, the George W. Bush administration offered the Patriot Act to Congress. It was crafted in secrecy and enacted in infidelity to the Constitution. Members of the House of Representatives had 15 minutes to read is 300+ pages and no time for serious floor debate. The one senator who spoke out against it was driven from office.
Section 505 of the Patriot Act permits federal agents to bypass the requirements of the Fourth Amendment and to issue their own search warrants. Those agent-written warrants are not based on probable cause of crime but rather on a representation by one agent to another of governmental needs — the same lame standard used by the secret London courts that issued writs of assistance.
Since 2001, federal agents have issued more than 300,000 of these search warrants — which they call National Security Letters — to custodians of financial records. In 2004 alone, 56,507 agent-written search warrants were issued. Those custodians include financial institutions, telecom providers, computer service providers, supermarkets, credit card issuers, health care insurers and providers, legal service providers, local and state governments, and even the Post Office.
The very concept of one federal agent authorizing another to seize records is antithetical to the Fourth Amendment and repugnant to the American Revolution.
I am writing about this now because a section of the Patriot Act will expire on March 15, and many congressional liberals and libertarians — even a few conservatives still bruised at the governmental surveillance of candidate Donald Trump in 2016 — have been contemplating structural changes to this pernicious law.
Section 215 — which is about to expire — is as fatal to freedom as is section 505. It permits designated federal judges to issue general warrants based on the old writs of assistance standard of governmental need. One of those judges signed a search warrant for the telephone records of all Verizon customers in the U.S. — at the time, 115 million of them.
Both 215 and 505 are weapons of mass surveillance and should be repealed. They are instruments of a totalitarian government, not of free people. They defy the Constitution. They presume that our rights are not natural but come from a government that can take them back. Mass surveillance produces a state that knows more about us than we do about it — one that will slowly consume our freedoms in the name of governmental needs. It already has.