It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [63]
Positivists (who think they can write any laws), like President George W. Bush, and Progressives (who think the government can trump the Natural Law), like President Barack Obama, defend the Act as essential to the security of the nation; in reality, it is an all-out assault on the right to privacy. More specifically, it directly violates the Fourth Amendment right against “unreasonable searches and seizures” and facilitates the issuance of warrants without “probable cause.”32 The government now uses what it publicly calls National Security Letters, or self-written search warrants, and “sneak and peek” warrants to invade your privacy.
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Self-written search warrants are provided for in Section 505 of the Patriot Act. The Federal Bureau of Investigation (FBI) describes one of these warrants as “a letter request for information from a third party that is issued by the FBI or by other government agencies with authority to conduct national security investigations.”33 And while the FBI claims other government agencies have the authority to issue these letters, it also states that currently only the “most senior FBI officials” possess the authority to approve National Security Letters.34 Thus, rather than risking a judge denying a search warrant request, the FBI requests National Security Letters, and the FBI approves these requests!
Moreover, Section 505 is not narrowly tailored to limited circumstances. Rather it is limited to personal records from financial institutions, which are broadly interpreted, and the ridiculous list of financial institutions includes pawnbrokers; travel agencies; car, airplane, and boat dealerships; casinos; medical records; supermarket records; legal records; computer keystrokes; and finally, the institution with which we all engage in our most important financial transactions—the post office. Even the United States Postal Service is considered a financial institution under Section 505. When did sending a letter to grandma become the financial equivalent of dealing with a broker registered with the Securities and Exchange Commission? The government’s designation of different institutions as “financial” is now so vast that it intrudes on our daily rituals. So, if you were wondering how the government obtained all that information in Las Vegas, wonder no more. In fact, on its Web site the FBI lists the following as information obtainable through self-written search warrants: subscriber information, toll billing records, Internet service provider login records, electronic communication transaction records, financial records, money transfers, credit records, and other consumer identifying information.35 However, it does not inform the reader of how much information is included in the “other consumer identifying information” category.
Additionally, with the passage of the Patriot Act, self-written search warrants are permitted on a host of new subjects, and the Act formally rejected the protections against criminal prosecutions by its predecessors. Before the Patriot Act, if the nation’s intelligence agencies came upon evidence of a crime and came upon it by unlawful means, they could not turn it over to prosecutors. After the Patriot Act, they have been required to turn such evidence over to prosecutors. In fact, the Act requires government investigators to turn over to government prosecutors the unconstitutionally obtained evidence. The Act also mandates the evidence obtained from these wildly unconstitutional self-authorized search warrants is “constitutionally competent” in criminal prosecutions.36 Thus, until this section of the Act is challenged, the obtained evidence is currently “legal