Martin Lijtmaer writes:
On December 15, Bill of Rights Day, the uproar over body scanners had brought the Fourth Amendment to the front of the public debate. There are legitimate reasons to be upset over invasive, costly and arguably ineffective measures adopted in the guise of protecting national security. But the call to arms over body scanners is a distraction.
First, it’s debatable whether body scanners violate the Fourth Amendment. There is a plausible argument that such security measures are reasonable in light of potential hijacking threats. With 9/11 still etched in our national psyche, it’s hard to imagine that courts would deem body scanners unconstitutional.
Second and more important, the uproar over body scanners distracts us from far more egregious constitutional violations routinely committed by our government.
The Fourth Amendment explicitly prohibits authorities from conducting “unreasonable searches and seizures” and requires judicially authorized warrants based on “probable cause” that “particularly describ[es] the place to be searched and the persons or things to be seized.” Thanks to the Fourth Amendment, police must reasonably suspect criminal activity before conducting a stop and, absent rare exceptions, must secure a warrant, signed by a judge, before conducting a search.
However, in the wake of 9/11, federal agencies have fully ignored these constitutional restraints.
Let’s take, for example, the rampant use of national security letters (NSLs) by the FBI. NSLs are requests for information targeting an individual, but issued to third parties, such as Internet service providers, financial institutions or libraries. The Fourth Amendment requires that such information be obtained through a search warrant signed by a judge, supported by probable cause and specifically describing both the target of the warrant and reason for it.
However, the FBI employs NSLs unrestrained by any of these constitutional requirements. In other words, the FBI can access your highly personal and private information on a whim. And it has not used this power sparingly.