WASHINGTON – In the course of the FBI’s written response to a Freedom of Information Act request asking about the trade names and vendors of surveillance software the FBI had purchased, the administration has once again quietly acknowledged its antipathy to constitutional provisions that already its employees have. sworn to uphold.
Since we are dealing with software used to spy on Americans in the US and abroad, the constitutional right that is being violated is the right to privacy.
This is the age-old natural right to be left alone, which the Supreme Court recognized as protected by the Fourth Amendment for 175 years. Since that recognition in 1965, however, the executive branch of government has consistently denied it, despite near-universal judicial acceptance of the constitutional protection of the right.
Here’s the backstory.
The Fourth Amendment, which requires court-issued search warrants based on probable cause of the crime for all searches and seizures, protects the contents of devices that store data. So the owners of mobile devices and desktop computers have a privacy right to the data they have stored there. Even a narrow interpretation of the amendment, which guarantees privacy “persons, houses, papers and property”, must recognize that a computer chip is a “effect” and thus the owner enjoys this protection.
It is an allegiance to the plain language, common understanding, and definitive legal interpretations of the Fourth Amendment, to which all members of the government have sworn.
During the first Trump administration, the FBI, likely behind the president’s back but with the knowledge of senior appointees he appointed, purchased Israeli-made software known as zero-click. Zero-click refers to the ability of the software’s user to target and download content from a computer without having to trick an unwary target into clicking on a link. The manufacturer of this devilish software is known as NSO, and the trade name of the software is Pegasus.
When President Joe Biden learned of the FBI’s use of Pegasus without search warrants, he banned its government use, and his Commerce Department banned all U.S. purchases from NSO. The FBI now stores this software in a warehouse in New Jersey.
Why didn’t Biden just do his job and ban all unauthorized domestic spying?
When Rep. Adam Schiff, D-Calif., the former chairman of the House Intelligence Committee, revealed that the Drug Enforcement Administration had purchased a similar product to Pegasus, called Graphite, from another Israeli manufacturer called Paragon, Congress was taken into a $1.65 trillion omnibus legislative provisions that give the Director of National Intelligence the power to ban all parts of the intelligence community from purchasing or using foreign spyware.
Why didn’t Congress just do its job and ban all unauthorized domestic spying?
The answers to these questions reflect that the intelligence community knows too much about American presidents and too many members of Congress to defy Congress. Rep.’s proposal Schiff, which became law, was thus based on the supposed fear of Congress that Israeli-made spyware, when used by the FBI or DEA, could be used by the Israeli government as an espionage mechanism for the US government.
How strange; spies spying on each other! Taxpayers pay for this. The Constitution has been destroyed again. Congress is concerned about itself and not the people it represents.
When Rep. Schiff’s civil liberties colleague, Sen. Ron Wyden, D-Ore., asked the DEA about this, and it refused to give him a straight answer. Senator Wyden was concerned about the DEA spying on Americans outside the US. Outside? Yes, outside. For years, administrations of presidents from both parties have argued that the Fourth Amendment restricts only law enforcement, not the intelligence community, and they have argued that the Constitution only restricts government in the US.
This discredited argument has been rejected by the Supreme Court since the 1940s, and as recently as 2008, when the court ruled that wherever the government goes about its business, the Constitution accompanies it. This holding is hardly new. Rather, it is based on 400 years of British law that forbade kings and sheriffs from moving defendants to places outside Britain for torture and interrogation, only to be returned for trial.
If this rule – wherever the government goes, so does the Constitution – it doesn’t hold true, then nothing would stop the FBI and DEA from doing what British officials tried to get away with.
Now back to the FBI spying on us. Joe Biden’s DEA, and Donald Trump’s before that, takes the position that when it operates outside the US – such as the drug war against Mexico and Mexican citizens – it also operates outside the Constitution. To avoid a judicial ban on its extra-constitutional lawlessness, DEA lawyers must make a vigorous effort to prevent its conduct and its discredited arguments from being aired in an American courtroom.
They do this in two ways. First, as discussed above, it is the use of silent threats to coerce government officials into not explicitly banning these practices. And second, if necessary, to mislead federal judges and attorneys by creating a fictitious version of the evidence gathering. The fiction usually involves a foreign intermediary who hands over evidence to the FBI, which then passes it on to other FBIs unaware of its criminal origins.
Criminal? Yes, criminal. Hacking a computer without permission or a search warrant is a crime, regardless of where the computer is located and by whom.
Rep. Schiff and Senator Wyden have good intentions. All have a consistent record of defending civil liberties against government attacks. But the current culture in Congress prevents a full-fledged defense of privacy by Congress, regardless of which party is in power.
We elected a government and hired its employees to protect our freedoms and our property. Nowadays it doesn’t either. Rather, it attacks them.
Will the new Donald Trump put an end to this?
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For more information about Judge Andrew Napolitano, visit https://JudgeNap.com.
