The government knows how to evade an uncomfortable constitutional provision or High Court opinion, writes Andrew P. Napolitano regarding a case involving Donald Trump, Jack Smith and Elon Musk.
Elon Musk at a conference in March. (Wcamp9, Wikimedia Commons, CC BY 4.0)
When
Congress enacted the Stored Communications Act of 1986 (SCA), it
claimed the statute would guarantee the privacy of digital data that
service providers were retaining in storage. The act prohibited the
providers from sharing the stored data, and it prohibited unauthorized
access to the data, commonly called computer hacking — except, of
course, if the recipients or the hackers were working for the federal
government.
Just as it did with the Patriot Act of 2001 — which permits one federal agent to authorize another to conduct a search of stored data, without a judicially issued search warrant — the SCA permits judges to issue “orders” for searches without meeting the probable cause standard required by the Fourth Amendment.
Just like the Patriot Act — which in its original form prohibited the recipient of agent-issued search warrants, called National Security Letters (NSLs), from telling any persons of their existence — the SCA requires judges who issue orders for a search, upon the request of the government, to bar the custodian of the data who has received the order from informing the person whose data is sought.
What if the person whose data is sought has a claim of privacy on the data? What if the owner and creator of the data relied on the Fourth Amendment to keep the government’s hands off of it? What if that person was the president of the United States at the time he created the data? What if he has a claim of executive privilege on it? What if all persons have a privacy claim on all stored data and have a right to resist the government’s efforts to seek it?
Former President Donal Trump speaking to supporters at the “Save America” rally in Washington, Jan. 6, 2021. (Voice of America, Wikimedia Commons)
Here is the backstory.
Is a judicial order for data under the SCA a search warrant under the Fourth Amendment? It is, after all, a judicial order directing and authorizing an official of the executive branch to surveil and seize private property, and it does specifically describe the place to be searched or the thing to be seized. But, because it is not based on probable cause of crime as the Fourth Amendment requires, the short answer is: No.
In United States v. Carpenter (2018), the Supreme Court ruled that orders for data based on governmental need, rather than probable cause of crime, are constitutionally defective and the data cannot be used at trial.
But the government, which knows how to evade an uncomfortable constitutional provision or Supreme Court opinion, has continued to use the SCA as a means around them. This became apparent this week in a case before the Supreme Court involving former President Donald Trump, Jack Smith and Elon Musk.
Jack Smith on June 9, 2023, during a statement about the indictment of Trump. (U.S. DoJ, Wikimedia Commons, Public domain)
Two years ago, Smith, the special counsel prosecuting Trump for alleged Jan. 6 crimes, obtained an order from a federal judge in Washington, D.C., directing X — formerly known as Twitter — to surrender copies of communications sent and received by Trump in January 2021, and prohibiting X from informing Trump.
This was not a search warrant, as it was not based on probable cause of crime. It was an SCA order based on governmental need.
The SCA is unconstitutional on its face. This is so because it directly defies the Fourth Amendment, which guarantees privacy by requiring a showing under oath of probable cause of crime as the absolute precondition of all government searches and seizures. Nevertheless, X complied with the order, but filed a secret application with the judge who issued it seeking to vacate the order for silence.
Government orders for silence have a long and troubled history. The same First Amendment that prohibits Congress from infringing upon the freedom of speech also prohibits the government from compelling speech. If Congress cannot infringe upon or compel speech, how can it compel silence? It cannot constitutionally do so.
In 2005, in Connecticut, librarians wound up ensnared by a National Security Letter (NSL). The Patriot Act prohibited the recipient of an NSL from telling anyone — even a lawyer — of the receipt of it. When the librarians sued for the right to discuss the receipt of the NSL, the feds charged them with criminal violations of the Patriot Act by discussing the receipt of the NSL with their lawyers.
After a federal district court granted and a federal appellate court upheld the relief the librarians sought, and the criminal case against them was dismissed, Congress amended the Patriot Act to permit recipients of NSLs to discuss them with counsel. By then, five different federal judges had declared the silence provisions of the Patriot Act unconstitutional.
That should have been the end of commands for silence, but it wasn’t.
When lawyers for X argued that the SCA infringed upon Musk’s freedom of speech to tell Trump what the feds were up to, a federal district court rejected that argument and a federal appellate court upheld the rejection. X appealed to the Supreme Court, and the court — without an opinion or a dissent — declined to hear X’s appeal.
Here we go again. Doesn’t the Constitution mean what it says? Of what value are constitutional guarantees if those in whose hands we repose them for safekeeping secretly and repeatedly decline to do so? How does this end?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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