On July 4, we’ll again celebrate the United States of America declaring independence from the British Empire some 239 years ago. As a young nation, the United States broke new ground in 1788 when the thirteen states voted to ratify the Constitution. This document set forth the supreme laws of our land, placing strict limits on the powers of the federal government. Then, in 1791, the Bill of Rights was ratified, adding ten important amendments to the Constitution that clarified the limits on government power.
Among these first ten amendments is the Fourth Amendment, which secures the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This crucial guarantee of individual liberty—expanded in 1868 to protect Americans from unreasonable search and seizures by all levels of government—prevents officials from conducting broad, limitless searches of Americans’ homes and personal property. Our framers wrote the Fourth Amendment based on their experience with British “general warrants” and “writs of assistance,” which King George’s men used to intrude upon colonists’ lives and communications.
Today, we rely in part on courts of law, including the federal judiciary established by Article III of the Constitution, to enforce the Fourth Amendment’s guarantees. Yet the responsibility for ensuring the government respects our rights to be freedom from unreasonable searches and seizures does not rest with the courts alone. Instead, the legislative branch—Congress—also holds the responsibility for writing laws that do not authorize, or purport to authorize, searches of our papers or effects that exceed the bounds of the Constitution’s Fourth Amendment.
On June 2, 2015, we at CEI celebrated the enactment of the USA FREEDOM Act, a bipartisan bill passed by the House and Senate and signed by President Obama. The bill phased out the NSA’s indiscriminate surveillance of innocent Americans while preserving targeted counter-terrorism authorities. (Previously, a top-secret government program overseen by the NSA had collected and stored "metadata" about nearly all U.S. telephone calls—including who called whom, when, and from where.)
Under the USA FREEDOM Act, the NSA's bulk surveillance program is winding down. Yet this does not mean Congress’s work to protect Americans from unreasonable searches and seizures is over. Far from it; we face myriad threats to our Fourth Amendment rights.
Fortunately, recent reports suggest that Congress may soon take another bold step toward limiting unconstitutional government surveillance. POLITICO reports that Rep. Bob Goodlatte (R-Va.), who chairs the House Committee on the Judiciary, hopes to send the Email Privacy Act out of committee to the floor of the full House of Representatives before Congress recesses next month.
This is excellent news for the Fourth Amendment, as the bill would require law enforcement officials to obtain a search warrant issued upon a showing of probable cause before compelling a cloud-computing provider such as Google or Facebook from divulging the contents of a user’s communications. In other words, the Email Privacy Act would ensure the government can’t read your Gmail or rifle through your Dropbox files without persuading a judge that the information sought is likely to relate to a crime.
Especially now that the Email bill has over 284 co-sponsors in the House—well over half of the chamber, and nearly a veto-proof majority—it’s time for Congress to move forward and send the bill to President Obama’s desk. Instead of waiting on the courts to figure out how to apply the Fourth Amendment to the information age, when lawmakers return to Washington after Independence Day, they should seize this opportunity to take the lead in affirming one of the most cherished principles of our Constitution.