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Jewish World Review July 17, 2000 / 14 Tamuz, 5760

Nat Hentoff

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A stealth attack on privacy -- FIRST, there were the British officials who searched, whenever they chose, the homes and businesses of the American colonists. The helpless fury these searches caused led to our Fourth Amendment to the Bill of Rights. That amendment requires that law-enforcement agents, to obtain a search warrant, must show that there is probable cause that a crime has been or will be committed. They must also list in the warrant the specific persons or things to be searched.

Then the imperious J. Edgar Hoover authorized what were called "black-bag jobs" -- secret, warrantless searches by FBI agents in the name of national security. According to the Senate's Church Committee report, there were hundreds of "black-bag jobs."

Now, Sen. Orrin Hatch of Utah, or his staff, has slipped into a methamphetamine bill -- which passed the Senate on November 19, 1999, by unanimous consent -- a provision that brutally undercuts the privacy protections of the Fourth Amendment. I've asked the staff members of the few senators who support civil liberties whether those senators knew what they were voting on, and I'm told that it went right by them -- except for Sen. Patrick Leahy of Vermont.

Hatch's provision would allow federal law-enforcement agents to search your office, home or apartment while you're away, seize or copy things, and not tell you what they've taken for 90 days. Indeed, they could ask a judge to extend the period during which you're not notified for many more days.

You would only find out what they've taken or copied if they decide to prosecute you. The way the provision is worded tells you how sneaky it is. It's called "Notice Clarification." The clarification is that the raid is secret, carried out while you're away, and you don't get any notice of it until 90 days or more later. There's more. If the federal agents take something that is "intangible," they don't even have to inform you about what they have seized. For instance, they can read what is on your computer screen and copy it. That's "intangible" material.

What happens if they make a copy of the hard drive of your computer? Georgetown University law professor Paul Rothstein tells Lawyers Weekly that "that's also probably intangible."

In the first wiretapping case before the Supreme Court -- Olmstead vs. United States (1928) -- Justice Louis Brandeis warned ominously that the day would come when the government would be able to know what's in your private papers without your knowing that they'd found them.

As Jim Dempsey -- a privacy expert for the Center for Democracy and Technology -- points out, under this provision, "in the age of computers, it is possible for the government to copy a great deal of sensitive evidence without disturbing anything and without the subject knowing."

This subversion of the Framers' clear and original intention in the Fourth Amendment will make life easier for government prosecutors. As Professor Paul Rothstein notes, "You may not find out until right at the time of trial about evidence, and that puts a defense lawyer at a disadvantage."

I am told that the president and the Justice Department support this assault on the Constitution, but the Department says it has reached no decision yet. In any case, defense attorney Stephen Glassroth notes, "Those behind the provision are trying to get in the back door something they couldn't get in the front."

The "Notice Clarification" provision has not yet passed the House. As of this writing, it's still before the Judiciary Committee chaired by Henry Hyde of Illinois. Bob Barr of Georgia -- the most vigilant defender of privacy in Congress -- is trying to get it killed.

But even if the House does not approve this provision, Hatch or another member of the Senate can slip it into an omnibus Senate-House conference report on appropriations bills for multiple federal agencies. Because a conference report is an agreement between the two chambers, it cannot be amended on the floor of the House or the Senate.

Bob Barr, Rachel King (of the American Civil Liberties Union) and other protectors of the Fourth Amendment are watching very closely to detect any attempt to sneak this provision into a final bill that the president -- who is so often in contempt of the Constitution -- may sign.

Benjamin Franklin said, "Those who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Tell that to your representatives and senators before it's too late.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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03/03/00: The ACLU violates its principles --- yet again!
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10/26/99: Disappeared Americans
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09/27/99: Our 'Americanism'-ignorant generation
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07/26/99: Lady Hillary and the press

© 2000, NEA