With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this ‘metadata’ can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable”, akin to the general warrants issued by the Crown to authorize searches of Colonial Americans.
The technology powering the National Security Agency’s illegal domestic spying program would have amazed James Madison and the other framers of the Bill of Rights. In a time when the steamboat was a technological marvel, it would have been unimaginable for the government to collect millions of innocent Americans’ private communications and use computers to look for “suspicious patterns.”
But aside from the technology, the government’s ongoing violation of fundamental civil liberties would have been very familiar to the men who gathered in 1791 to adopt the Bill of Rights. The Founding Fathers battled an 18th century version of the wholesale surveillance that the government is accused of doing today – an expansive abuse of power by King George II and III that invaded the colonists’ communications privacy.
Using “writs of assistance,” the King authorized his agents to carry out wideranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs”(1) spurred colonists toward revolution (2) and directly motivated James Madison’s crafting of the Fourth Amendment.
We’ve now come full circle. The president has essentially updated this page from King George’s playbook, engaging in dragnet surveillance of millions of Americans, regardless of whether they are suspected of a crime. The founders of this country took steps to limit precisely this sort of unfettered executive power. Will we?