Blaming President Obama for Loss of Privacy? What about the Supreme Court?

August 22, 2013 By Ilyssa Fuchs

Over the past several decades, the Supreme Court has routinely and incrementally narrowed the scope of the 4th Amendment, which protects against unreasonable search and seizure, practically circumscribing it completely. Until recently, when the news broke about the National Security Agency’s data collection practices, few had really been paying attention to its disappearance. With the plethora of news surrounding the controversy over the NSA’s sweeping collection of metadata (and the subsequent debate about how to strike a balance between liberty and security) it seems as though everyone’s attention is focused on the Obama Administration rather than on Congress and the Supreme Court. However, while pointing the finger solely at the Administration might seem like a good idea, doing so is misplaced for two significant reasons.

First, while the executive branch can in some cases act unilaterally – through the use of executive orders – the Obama Administration did not unilaterally endow the NSA with these sweeping powers. On the contrary, the NSA gained the authority to carry out its data collection program because it was authorized to do so by the Patriot Act – which was enacted bilaterally by both the legislative and executive branches when it was passed by Congress in 2001 and signed by former President Bush, and then renewed by Congress in 2011 and signed by President Obama. Our government operates on a system of checks and balances, so no single branch can consolidate all government power. Notably, Congress recently debated reining in the Patriot Act, but ultimately did not pass any new laws repealing, replacing, or scaling it back. In fact, on July 24, 2013, the House voted 217-205 to reject limiting the law.

More importantly, the government institution that poses the biggest threat to the 4th Amendment, privacy, and liberty, isn’t the President or any executive agency per se. It is the Supreme Court, the only government institution with the power to determine the circumstances under which the 4th Amendment applies, carve out exceptions to the rule, and decide the constitutionality of the Patriot Act. Moreover, the Court has continuously scaled back the rights codified by the 4th Amendment over the past several decades. These exceptions, operating in tandem with the Patriot Act, allow the executive branch to legally take actions which would seem to contravene the rights the 4th Amendment exists to protect.

For starters, the Court has ruled that the 4th Amendment simply isn’t triggered unless law enforcement performs a search or a seizure. [1] Once a search or a seizure transpires, then and only then will a lower court inquire into whether a 4th Amendment violation occurred. For instance, the Supreme Court has explicitly held that a person cannot manifest a reasonable expectation of privacy (and thus the 4th Amendment is inapplicable) when it comes to abandoned property, conversations with others (because there is no expectation that the other person will keep the conversation a secret), bodies of land that are open to public view (aka the “open fields doctrine”) or in anything that a member of the public could easily access, such as ones trash...

Read the infuriating details of what over a generation of conservative rulings have done to this country. The GOP mantra since the Warren court has been to get the Presidency in order to appoint people with their point of view. It's done terrible damage to this country and undone most of our progressive laws.

http://www.forwardprogressives.com/blaming-president-obama-for-loss-of-privacy-what-about-the-supreme-court/

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