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Are Federal Spying Powers Modern Day Writs of Assistance?

January 2, 2018 in Economics

By Daniel Brookman

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By: Daniel Brookman

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.
—The 4th Amendment to the US Constitution

Continuing Resolution Bill H.R. 1370 was signed into law by President Trump Friday December 22nd allowing the President to symbolically sign the Tax Cuts and Jobs Act in time for Christmas. Attached to the bill, in addition to the usual wasteful spending, is the extension of the controversial FISA Section 702 Amendment that allows the government to spy on Americans without a probable cause warrant. Fortunately thanks to a handful of bipartisan Senators the reauthorization only lasts until January 19th 2018. Senator Rand Paul (R-KY) threatened to filibuster any bill that included a long-term extension of the FISA amendment.

Undoubtedly we will see the FISA Amendment debated in Congress after the New Year, and it will be important battle in an effort to restore Americans’ protections from warrantless searches and seizures guaranteed by the 4th Amendment. Overreaching intelligence community zealots and their allies in the legislature have been using national security as justification for a less than constitutional standard for collecting and using Americans private data.

Specifically, Section 702 currently allows the FBI and other federal agencies to use bulk data collected during the surveillance of foreign targets to be used in the prosecution of domestic cases. It acts as a backdoor to allow carte blanche spying on U.S. citizens bypassing the requirement for specific warrants issued upon probable cause. Senator Paul has been fighting for better protections for Americans from these unconstitutional actions and introduced the bipartisan USA Rights Act with Senator Ron Wyden (D-OR) earlier this year aimed at doing just that. The bill didn’t make it out of the powerful Senate Intelligence Committee.

The blanket warrants being used are essentially no different than the Writs of Assistance the British Crown imposed on colonial merchants leading up to the Revolutionary War. These Writs were general warrants that allowed officials to search and seize private property based upon any suspected premise. James Otis, a prominent mid-18th century lawyer, appointed to the prestigious post of Advocate General of the Admiralty Court, resigned his post to represent the colonial …read more

Source: MISES INSTITUTE

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