Orange County Register
These are dark days for the Fourth Amendment, as two measures to put an end to the government’s unchecked surveillance of American citizens were recently defeated in Congress.
Things initially looked positive. In late April, the House unanimously passed, 419-0, H.R. 699, the Email Privacy Act, which would plug a privacy loophole in a 30-year-old law that allows government agents to search electronic communications stored more than 180 days without first obtaining a warrant. After all, the Fourth Amendment does not have a six-month expiration date. But then Sen. Mike Lee, R-Utah, was forced to pull his corresponding legislation, S. 356, this month in the Senate after amendments were proposed that would have eviscerated those protections.
To make matters worse, on Thursday, the House rejected, 198-222, an amendment to the defense appropriations bill that would have defunded the National Security Agency’s warrantless searches of Americans’ communications that are swept up in dragnet surveillance supposedly targeted at non-U.S. citizens without judicial oversight. It also would have prevented the government from requiring companies to include a “backdoor” in their encryption technologies that the government (as well as hackers, identity thieves, foreign governments and other bad actors) could access. The House had overwhelmingly passed similar measures the past two years, by votes of 293-123 in 2014 and 255-174 in 2015, but in both years it was stripped out of the final budget deal.
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This year, however, lawmakers’ reasoned defenses of Americans’ liberties were overcome by fear in the wake of the Orlando nightclub terrorist attack. “You can’t waive the Fourth Amendment just because it’s not convenient at any point in time,” Rep. Massie, who introduced the amendment with San Jose Democratic Rep. Zoe Lofgren, told Reason magazine. “The irony of my [Republican] colleagues using the Orlando tragedy to erode the Fourth Amendment is they are castigating the Democrats for using the tragedy to erode the Second Amendment,” he added.
“If we let terrorism compel us to ignore the Constitution, then haven’t the terrorists won?” Rep. Massie argued in a Facebook post before the vote. “It’s a shame my colleagues are using the Pulse shooting in Orlando to motivate an erosion of our rights.”
The rights delineated in the Constitution are infrangible. The founders did not include provisions that permitted them to be suspended whenever the government claimed to be facing a threat — and with good reason. Such an exception would only encourage those in power to imagine or generate additional threats to justify their violations of our liberties. If our representatives are too spineless or naïve to recognize this, then we must replace them with those who do.