When it comes to privacy, NSA is only part of the problem

A single, now-famous whistleblower and countless journalists have exposed widespread NSA operations that invade our privacy and violate the Fourth Amendment.  But the NSA, the police, and other government agents are only part of the problem.  The bigger problem is that the judiciary—the supposedly neutral and detached group to whom we look for protection from the NSA and its ilk—has reduced the Fourth Amendment to meaningless jargon.  In reality, every day in nearly every city and state across the country, state-court judges are allowing government agents to violate the Fourth Amendment’s warrant requirement at the expense of our privacy rights.

For example, the judicial tactics in the recent case Statev. Howard are so typical throughout our country’s state courts that they are best described as run-of-the-mill.  First, unlike the NSA, the police did more than just look at Howard’s phone records: they searched his body and collected his DNA without a warrant.  But when Howard challenged this warrantless search, the judge upheld it.  Why?  Because, the judge reasoned, the police merely committed “an honest mistake,” and had they realized they were searching Howard without a warrant, they could have applied to a judge and “could have obtained a search warrant.”  This after-the-fact rationalization—a dangerous mindset that travels under various labels such as “the good faith exception” or “the inevitable discovery rule”—is so common that it, more than anything else, is responsible for the Fourth Amendment’s demise.

Second, and equally alarming, the police conducted another search of Howard’s body—this one with a warrant.  But for this search, the government could not produce the affidavit (the written, sworn statement) that supposedly served as the basis for the warrant.  Understanding the importance of the affidavit requires an understanding of the process: the police draft the search warrant they want, and then bring it to a judge for signature.  But before a judge may sign any warrant authorizing the search of our homes or, worse yet, our bodies, the police must also present the facts that justify search.  Further, these facts must be in the form of an affidavit or other sworn statement.  Why?  Because without the penalty of perjury hanging over their heads, the police would be free to make any false statements they wish to induce the judge to sign the warrant.  Therefore, when the government cannot produce the affidavit that supposedly served as the basis for judge’s signature on the warrant, the warrant should be void.

In Howard, not only was there no signed affidavit, but the judge who allegedly signed the warrant—there was even a dispute about whether his “signature” was an unauthorized “copy and paste from some other document”—said that “he had no memory of the detectives actually applying for the search warrant.”  Without an affidavit or the signing judge’s independent recollection, how was the search of Mr. Howard upheld?  The signing judge merely told the presiding judge that it would have been his “usual practice” to look for an affidavit, and then read it and compare it to the warrant before signing.  And just like that, another Fourth Amendment violation was swept under the rug. 

Beyond the steamrolling of Mr. Howard’s rights, the bigger picture is even more alarming.  A strong argument can be made that it is not the “usual practice” of our nation’s judges to read police affidavits before signing search warrants.  In cases where the government is actually able to produce the affidavits, the names and places and other details alleged in them are often different than those described in their accompanying warrants.  Had the signing judges really read and compared the two documents, they never would have signed the warrants in the first place.  In other cases, judges have been accused of going even further by pre-signing stacks of blank warrants for the police to fill in and use as they wish, without even the pretense of judicial review.  One judge accused of this over-the-top practice recently admitted it and resigned his post, thereby terminating a judicial ethics investigation into the matter.

So while it is very important to expose illegal practices by the NSA, the police, and other government agents, we have to remember this is only the first part of the battle.  The next part is finding a solution.  And until our state judiciaries begin protecting our Fourth Amendment rights, rather than devising after-the-fact rationalizations to rubber-stamp illegal government practices, we are only marginally better off than if the offending government agents were still operating in secret.