Restore The Fourth Files Amicus Brief In Critical Fourth Amendment Case

by Alex Marthews, National Chair

Restore The Fourth is turning its hand to something new: Filing its own legal amicus curiae (“friend of the court”) brief in federal appeals court.

The key remedy for Fourth Amendment violations is the ability of defendants to exclude evidence that was seized through an unconstitutional search. However, since 1984, the Supreme Court has narrowed this remedy, finding that exclusion is not required when the officer is relying in good faith on “binding appellate precedent” or on mistakes made by others. In US v. Ganias, a case now being reviewed en banc by the 2nd Circuit, there is a serious risk that this “exclusionary rule” will be narrowed even further.

U. S. v. Ganias involves an investigation of Stavros Ganias, a Connecticut CPA. His hard drive was imaged by Army investigators looking for evidence of contracting fraud by two of the his clients. It took thirteen months for the Army to separate out the Quickbooks files of the two clients. Then, because the Army by now viewed the image of Ganias’s hard drive as “government property”, they never gave the rest of his imaged hard drive’s content back; they felt it might come in useful someday. Two years later, in 2006, the IRS was investigating Mr. Ganias for suspected tax evasion. They asked the Army for the hard drive image from 2003. They got a new warrant, searched the old hard drive, and found evidence of tax evasion. The 2nd Circuit Court of Appeals ruled in Ganias’s favor, declaring that there had been a violation of the Fourth Amendment’s prohibition on unconstitutional searches and seizures, and that the hard drive, as a product of that unconstitutional search, should be excluded. But now, the ruling is being reviewed en banc and may be overturned.

We wanted to do our part in preserving the ability of people targeted by the US government to gain meaningful redress, so we have filed our first ever amicus curiae (=”friend of the court”) brief. With assistance from Mahesha Subbaraman, a brilliant attorney who recently resigned from the Institute for Justice to start his own private practice in Minneapolis, MN, we were able to articulate a compelling argument for why the government cannot simply sit on an ever-increasing pile of seized records for them to rootle through at will when they become useful. The case will be ruled on in September.

Congress, Don’t You Dare Revive The PATRIOT Act

by Alex Marthews, National Chair

In the runup to last night’s sunset of three PATRIOT Act authorities, TV-watchers were barraged with lurid threats of “horrific terrorist attacks and violence” that would be our lot if we dared to let go of any of them. And then the authorities did sunset, and we all woke up this morning, still alive, and mysteriously unmassacred.

Look around you. What you see outside is that apocalypse’s first day, and … we’re OK. A small part of the surveillance state has stopped collecting new data. In the full daylight, cops are still stopping suspects. In the shadows, PRISM collection continues, unreformed. But this morning proves that Section 215 was never needed. The dragnets enabled under it didn’t do a blind bit of good.

This is hard to swallow, but it’s true. There never was, on this topic, any “tradeoff between privacy and security”. There never was any well-intentioned desire to Keep Us Safe™. The NSA felt able to launch mass metadata dragnets, and they did. That’s it. No-one really bothered analyzing whether the dragnets really worked. It wasn’t about effectiveness, or about safety. It was about fostering a culture of submission to authority.

In the same way, more locally, for twenty years and more, the NYPD wasted millions of dollars in staff time, conducting suspicionless “stop and frisks” of millions of people who had done nothing wrong. When questioned, they argued that without stop and frisk, lawlessness would run rampant. And then, when they were forced to stop last year, what happened? Crime fell.

In the same way, after 9/11, we took the Fourth Amendment, and broke it. We chose to torture people, run secret prisons, and launch illegal wars, all, again, to Keep Us Safe. It was, and is, for nothing. The bombs we dropped, the pain we caused, the lives we took, were all in vain.

We should be under no illusions now. The claim that Section 215 was needed, like the claim that the Iraq War was needed, were always nonsense. In all likelihood, the claims we need the other mass surveillance systems are nonsense too. Don’t go telling us that we can’t do without, say, mass internet surveillance under Section 702 of the FISA Amendments Act, or without full take of entire countries’ audio and Internet communications under Executive Order 12,333. We’ve done without such things before. We can do without them again. We gain no safety from submission, and it should not have taken fourteen years to learn that lesson, stop submitting and start standing up straight again.

Here’s the bad news. Not only the sunset happened last night. The Senate also voted for cloture on the USA FREEDOM Act, which would put these three expired provisions back into law, by a margin of 77 to 17. On Tuesday, they’ll vote on the bill itself, and it looks likely, based on the cloture vote, to pass. Even if there are no amendments, the President will sign it. So on the third day after sunset, Section 215 will rise again, like a new-bitten zombie, and start looking for prey. Undead Section 215 will be a little different – for example, instead of holding the dragnet data itself, the NSA will pay Internet and phone companies to hold onto it, and it’s likely that when it passes it will allow the NSA to instruct companies to format the data in such a way that the NSA can query it almost frictionlessly. Permanent sunset will mean the NSA actually has to collect less, and that’s so unimaginable to Senators – well, to all but a very few Senators – that they are racing to restore the lapsed parts of the PATRIOT Act and deprive you and me once again of the liberties we have so improbably won back.

So I say to our more servile Senators: Don’t you dare restore the PATRIOT Act. You aren’t here above all to Keep Us Safe™; you’re here above all to protect the Constitution. Endorsing the USA FREEDOM Act breaks that oath. Look at the side the fearmongers have taken, and the profits they stand to make, and vote the other way. Vote No on the USA FREEDOM Act tomorrow, and then let’s discuss, deeply, seriously, openly and fearlessly, what kinds of surveillance the Constitution will allow. The American people are ready to breathe more freely and live their lives less watched. It’s time to move forward.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).