The knee-jerk reaction of some liberals to the death of Supreme Court Justice and legal giant Antonin Scalia gives us a peek into a deranged liberal world where the Constitution becomes secondary to the outcome of the case. While some on the left have rejoiced at the news of Scalia’s death, if they took a second to look, they would see that he was a champion of liberty, free speech, and privacy.
Most look at Justice Scalia as a “conservative” vote on the court. His record is far more complicated as you look case-by-case and issue-by-issue. On the issue of the Fourth Amendment, Scalia did not side with the other “conservatives” on the bench all the time. He was a true constitutional conservative who has stood up for the Bill of Rights as they apply to the right to privacy in one’s home, on a person, in ones private papers and in a person’s effects.
Mark Joseph Stern writing in Slate.com has taken notice of Scalia’s penchant for being “extraordinarily protective of Americans’ right to privacy — though he himself would never use that term. He wrote the majority opinion in Kyllo v. United States, a 5-4 ruling that barred police from peeping into a home with a thermal-imaging device. He also wrote the majority opinion in Florida v. Jardines (another 5-4 decision), barring police from entering private property with a drug-sniffing dog without a warrant. Time and time again, he cast votes to protect drivers from intrusive car searches by law enforcement. Just last term, he sided against the police in a landmark ruling that restored constitutional rights to motorists illegally detained by cops.”
Justice Scalia was proof that the only thing standing between liberty and tyranny is a judge in a black robe. But that should not be the case. And with the passing of Justice Scalia, there is likely a deadlock on the Fourth Amendment that will not be broken until a new justice is placed on the bench.
While the executive branch and the legislative branch of government seek more power, sometimes there are opportunities for Congress to use its power to pass laws that limit the power of the state. Giving back power to the people is the right thing to do. The LEADS Act (“Law Enforcement Access to Data Stored Abroad,”) is an opportunity to balance privacy and the needs of law enforcement at the same time.
The LEADS Act is a bipartisan effort designed to rollback a massive power grab designed and executed by the Obama administration, in particular the Department of Justice. When the DOJ opened an investigation of an Irish citizen who stored information on a cloud computing system owned by an Irish company on servers stored on the island nation, they tried to bypass the Mutual Assistance Treaty signed between the United States and Ireland.
The Justice Department produced a warrant, but the statute governing this fact pattern did not address a situation where the U.S. government is trying to get information about a foreign national in a foreign nation. Think about if the government of Iran demanded information about American citizens who have been critical of Iran and produced a warrant issued by an Iranian court so they could compile a list of Americans who are critical of the Iranian government. Americans would not stand for that.
The Justice Department argument is that electronic data differs from material data and there is no need to request the assistance or the consent of a foreign government for data stored on the cloud. This ignores the idea that a foreign government has dominion over the citizens of their own country. The U.S. government can’t produce a warrant merely because the foreign citizen emailing another foreign citizen was transacted by a U.S. company.
DOJ has seized the opportunity to expand its power by suggesting that because the company holding the data was a subsidiary of an American company, there was no need to request Irish acquiesce to grabbing the data, a domestic warrant was enough. DOJ’s argument that anything stored on the cloud-based computer systems, even by foreign nationals on foreign servers stored, falls within their grasp. This type of argument would destroy an American company hosting cloud computing services because no other nation would trust that the data was secure.
This also is the type of argument Justice Scalia would have likely rejected. Now that we have a deadlocked Supreme Court on the Fourth Amendment right to privacy issue, it is time for Congress to act to protect the right of email privacy. Congress can and should avoid the risk of a less principled judge rolling over to the DOJ by enacting the LEADS Act.