Is the CIA in Your Kitchen?
Andrew P. Napolitano
by Andrew P. Napolitano: Can
the Secret Service Tell You To Shut Up?
If this question
had been asked by a fictional character in a spy thriller, it might
intrigue you, but you wouldn't imagine that it could be true in
reality. If the Constitution means what it says, you wouldn't even
consider the plausibility of an affirmative answer. After all, the
Fourth Amendment to the Constitution was written to prevent the
government from violating on a whim or a hunch or a vendetta that
uniquely American right: the right to be left alone.
at some point in the day, at some places in the home, to be left
alone. The colonists who fought the war of secession from Great
Britain were no different. But that war and the wish to keep the
government at bay had been heightened by the colonial experiences
involved in the enforcement of the Stamp Act.
That law, which
applied to the colonies and not to residents of Great Britain, required
that government stamps be purchased and printed on all legal, financial
and even political documents in the possession of every colonist.
The enforcement of that law – which was done by British soldiers
who entered private homes armed not only with guns but also with
search warrants that they had written for themselves, which Parliament
authorized them to do – was so disturbing and resulted in such anti-British
political animosity that Parliament eventually rescinded the act.
But the damage
to British rule had been done, and it was irreparable. After the
Founders won the Revolution and wrote the Constitution and added
the Bill of Rights, they rested in the assurance that only judges
could issue search warrants "particularly describing the place to
be searched and the persons or things to be seized," and that judges
could only do so if they found probable cause of criminal behavior
in the place the government targeted.
The war on
drugs has regrettably weakened the intended protections of the Fourth
Amendment, and the Patriot Act – which permits federal agents to
write their own search warrants – has dealt it a serious blow. That
act, which has not yet been ruled upon by the Supreme Court, fortunately
has not yet animated the Supreme Court's privacy jurisprudence.
Last year, the court invalidated the police use of warrantless heat-seeking
devices aimed at the home, and it will probably soon invalidate
the warrantless use of GPS devices secretly planted by cops in cars.
unless the government attempts to use the data it has illegally
gathered about a person, the person probably will not be aware of
the government's spying on him, and thus will not be in a position
to challenge the spying in a court. Relying on the Patriot Act,
federal agents have written their own search warrants just like
the British soldiers did. They have done this more than 250,000
times since 2001. But the government has rarely used any evidence
from these warrants in a criminal prosecution for fear that the
targeted person would learn of the government's unconstitutional
and nefarious behavior, and for fear that the act would be invalidated
by federal courts.
Now, back to
the CIA in your kitchen. When Congress created the CIA in 1947,
it expressly prohibited the agency from spying on Americans in America.
Nevertheless, it turns out that if your microwave, burglar alarm
or dishwasher is of very recent vintage, and if it is connected
to your personal computer, a CIA spy can tell when you are in the
kitchen and when you are using that device. The person who revealed
this last weekend also revealed that CIA software can learn your
habits from all of this and then anticipate them.
and hoping to "change fingerprints and eyeballs" in its "worldwide
mission" to steal and keep secrets, the CIA can then gut the Fourth
Amendment digitally, without ever physically entering anyone's home.
We already know that your BlackBerry or iPhone can tell a spy where
you are and, when the battery is connected, what you are saying.
But spies in the kitchen? Can this be true?
all this last weekend? None other than Gen. David Petraeus himself,
President Obama's new director of the CIA. I wonder whether he knows
about the Fourth Amendment and how the Supreme Court has interpreted
it and that federal laws prohibit his spies from doing their work
in America. I wonder whether he or the president even cares. Do
with the author's permission.
March 23, 2012
Andrew P. Napolitano
[send him mail],
a former judge of the Superior Court of New Jersey, is the senior
judicial analyst at the Fox News Channel, and the host of “FreedomWatch”
on the Fox Business Network. His latest book is It
is Dangerous to be Right When the Government is Wrong: The Case for
© 2012 Andrew P. Napolitano
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