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FISA Amendments Act Reauthorization Act of 2012

Floor Speech

Location: Washington, DC


Mr. PAUL. Madam President, I rise today in support of the Fourth Amendment Protection Act. The fourth amendment guarantees the right of the people to be secure in their persons, their houses, their papers, and their effects against unreasonable searches and seizures.

John Adams considered the fight against general warrants--or what they called in those days writs of assistance--to be when ``the child Independence was born.'' Our independence and the fourth amendment go hand in hand. They emerge together. To discount or to dilute the fourth amendment would be to deny really what constitutes our very Republic.

But somehow, along the way, we have become lazy and haphazard in our vigilance. We have allowed Congress and the courts to diminish our fourth amendment protections, particularly when we give our papers to a third party--once information is given to an Internet provider or to a bank. Once we allowed our papers to be held by third parties, such as telephone companies or Internet providers, the courts determined we no longer had a legally recognized expectation of privacy.

There have been some dissents over time. Justice

Marshall dissented in the California Bankers Association v. Schulz case, and he wrote these words:

The fact that one has disclosed private papers to a bank for a limited purpose within the context of a confidential customer-bank relationship does not mean that one has waived all right to the privacy of the papers.

But privacy and the fourth amendment have steadily lost ground over the past century. From the California Bankers Association case, to Smith v. Maryland, to U.S. v. Miller, the majority has ruled that records, once they are held by a third party, don't deserve the same fourth amendment protections.

Ironically, though, digital records seem to get less protection than paper records. As the National Association of Defense Attorneys has pointed out, ``since the 1870s, a warrant has been required to read mail, and since the Supreme Court's decision in Katz v. the United States, a warrant has generally been required to wiretap telephone conversations. However, under current law, e-mail, text messages, and other communication content do not receive this same level of protection.'' Why is a phone call deserving of more protection than our e-mail or texts?

In U.S. v. Jones, the recent Supreme Court case that says the government can't put a GPS tracking device on a car without a warrant, Justice Sotomayor said this:

I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they have visited in the last week, or month, or year. ..... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to the Fourth Amendment protection.

Justices Marshall and Brennan, dissenting in Smith v. Maryland, emphasized the danger of giving up fourth amendment protections. They wrote:

The prospect of government monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.

In Miller and in Smith, the Supreme Court held that the fourth amendment did not protect records held by third parties. Sotomayor wrote in the Jones case that it may be time to reconsider these cases, reconsider how they were decided; that their approach is, in her words, ``ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.''

Today, this amendment that I will present, the Fourth Amendment Protection Act, does precisely that. This amendment would restore the fourth amendment protection to third-party records. This amendment would simply apply the fourth amendment to modern means of communications. E-mailing and text messaging would be given the same protections we currently give to telephone conversations.

Some may ask, well, why go to such great lengths to protect records? Isn't the government just interested in the records of bad people?

To answer this question, one must imagine their Visa statement and what information is on that Visa statement. From our Visa statement, the government may be able to ascertain what magazines we read; whether we drink and how much; whether we gamble and how much; whether we are a conservative, a liberal, a libertarian; whom we contribute to; what our preferred political party is; whether we attend a church, a synagogue, or a mosque; whether we are seeing a psychiatrist; and what type of medications we take. By poring over a Visa statement, the government can pry into every aspect of one's personal life. Do we really want to allow our government unfettered access to sift through millions of records without first obtaining a judicial warrant?

If we have people who are accused of committing a crime, we go before a judge and get a warrant. It is not that hard. I am not saying the government wouldn't be allowed to look through records. I am saying that the mass of ordinary, innocent citizens should not have their records rifled through by a government that does not first have to ask a judge for a warrant before they look at personal records.

We have examples in the past of abuses by our own country. During the civil rights era, the government snooped on activists. During the Vietnam era, the government snooped on antiwar protesters. In a digital age, where computers can process billions of bits of information, do we want the government to have unfettered access to every detail of our lives? From a Visa statement, the government can determine what diseases one may or may not have; whether one is impotent, manic, depressed; whether someone is a gun owner and whether he or she buys ammunition; whether one is an animal rights activist, an environmental activist; what books we order, what blogs we read, and what stores or Internet sites we look at. Do we really want our government to have free and unlimited access to everything we do on our computers?

The fourth amendment was written in a different time and a different age, but its necessity and its truth are timeless. The right to privacy and, for that matter, the right to private property are not explicitly mentioned in the Constitution, but the ninth amendment says that the rights not stated are not to be disparaged or denied.

James Otis--arguably the father of the fourth amendment--put it best when he said:

One of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.

Today's castle may be an apartment, and who knows where the information is coming from. It may be paper in one's apartment or it may be bits of data stored who knows where, but the concept that government should be restrained from invading a sphere of privacy is a timeless concept.

Over the past few decades, our right to privacy has been eroded. The Fourth Amendment Protection Act would go a long way toward restoring this cherished and necessary right. I hope my colleagues will consider supporting, defending, and enhancing the fourth amendment, bringing it into a modern age where modern electronic and computer information and communications are once again protected by the fourth amendment.

Madam President, I reserve the remainder of my time.


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