The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
50 years ago, this amendment meant something. Since the 90s, it doesn't mean much at all.
Sneak and Peek warrants are the order of the day for the FBI, all an agent has to do is state that the warrant is needed for a terrorism investigation. Patriot Act aside, this amendment should be one of the most important for the right to privacy from government intrusion that it entails, but it's not. One has to wonder if it's a right anymore.
Take the
Cory Maye case. A black man in Mississippi who shot at a man who had just busted down his back door. Cory Maye, in fear of his life and that of his baby daughters, had no idea he had just shot a police officer. A police officer who was serving a 'no knock' warrant for the apartment next to his. Even though the police didn't have a warrant with Corys address on it, nor did they have probable cause to apply for a warrant, he was tried, convicted, and sentenced to death for the murder of that police officer, who just happened to be the son of the Police Chief.
While the Fourth Amendment forbids the police from conducting unreasonable searches and seizures, the Supreme Court has found a way to circumvent that guarantee. The FBI suspected Nicodemo Scaro, the sone of incarcerated mob boss 'Little Nicky' Scarfo, of masterminding a loan sharking and gambling operation in New Jersey and raided his office in January 1999. The agents copied the contents of Scarfo's computer hard drive, but were not able to read a single file. Scarfo had installed an encryption program, PGP, which required a user password. The FBI tried, but failed, to crack that password. Having failed to access Scarfo's files using standard law enforcement techniques, the FBI's last hope was to break the law. If the FBI were ablot to obtain Scarfo's password, they could simply type it in and bypass the encryption software. Accordingly, they sought to install a 'key logger' software package on to Scarfo's computer.
Agents approached a federal magistrate judge about their failure to obtain Scarfo's password and asked for "authority to search for and seize encryption-key-related pass phrases" and to "install and leave behind [technologies] which will monitor the inputted data entered on [Scarfo's] computer by recording the key related information as they are entered."
The U.S. Magistrate concluded that it was now acceptable for the FBI to break the law because "normal investigative procedures to decrypt the codes and keys encessary to decipher the....encrypted computer file
have been tried and failed. With complete disregard for Scarfo's privacy, this judge authorized the FBI to break into Scarfo's office
as many times as necessary to deploy, maintain, and remove "recovery methods which will capture teh necessary key-related information and encrypted files."
Even though Scarfo was suspected of loan sharking, not terrorism, the government cited "national security" concerns and refused to disclose any information about the mechanism to Scarfo's attorneys.
The federal district judge was inclined to defer to the FBI's authority. the government, fearing that an appeals court was likely to order the FBI to disclose this 'key logging' technology, which would have shown a clear violation of the Fourth Amendment, arranged a plea bargain with Scarfo.
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How important is the Fourth and how far does the public interest go in superceding this right?