Under the pretense of needing to respond to the Orlando terror attack, a group of mostly Republican Senators led by John McCain attempted to extend authority to the FBI to conduct warrantless searches of individuals’ email and browser histories if they are suspected of terrorist activity. The measure failed but by the narrowest of margins. (Washington Post)

The Senate on Wednesday rejected a Republican-led effort to allow the FBI to access a person’s Internet browsing history, email account data and other electronic communications without a court order in terrorism and spy cases.

The measure from Senate Armed Services Committee Chairman John McCain (R-Ariz.) and Senate Intelligence Committee Chairman Richard Burr (R-N.C.) would have also extended the government’s authority to conduct surveillance over potential “lone wolf” attackers.

McCain and Burr argued that the changes were necessary in the wake of recent terror attacks such as Orlando, where a gunman claiming inspiration and loyalty to the Islamic State killed 49 people at a gay nightclub.

A majority of the Senate backed the proposal in a 58 to 38 vote, but it needed 60 votes to advance.

While I’m generally one of the bigger advocates of law enforcement power you’ll find, this one crosses a line even for me and I’m relieved that it didn’t pass. As much as I want the authorities to catch and dispose of every ISIS supporter in the country, what they were looking for here is simply beyond constitutional limits. In addition to that fact I would invoke the standing rule which says that any new legislation which is rushed through in response to some highly visible, tragic event is generally not a great idea to begin with. If we don’t want to let the Democrats bulldoze through new gun grabbing measures in response to Orlando, we shouldn’t give this a pass either.

If the FBI is monitoring social media networks and tracking down terrorist supporters based on things they stupidly post on Twitter and Facebook, I”m all for that. And such postings should very well serve as probable cause to obtain a warrant and dig deeper. But that’s because the user has voluntarily taken their communications to a public forum where anyone (including law enforcement) may view them. But your browser history resides on your own machine, which is morally the same as being inside your house. (And frequently your laptop likely is in your house anyway.) Your emails are also locked up and supposedly under your control, even if the data technically resides on some far off server.

This is much the same as the idea of collecting physical evidence from someone’s home. If you are silly enough to put the evidence of your crimes out on the sidewalk with your trash, that’s just bad luck for you. The authorities can come scoop it up and go through it. But as long as it stays within your house, you are protected by the Fourth Amendment.

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.

In the 21st century, our emails and other bits on our computers which we expect to be private are our “papers.” I’m afraid that goes for citizens who may or may not be providing support to ISIS or plotting mass destruction. Officials need to show probable cause and obtain a warrant before they get to rummage through your bin.

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