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Judge Andrew P. Napolitano
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Is the CIA in Your Kitchen?

Comment

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.

Everyone wants, 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them to do — was so disturbing and resulted in such anti-British political animosity that Parliament eventually rescinded the act.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.

Regrettably, 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 (SET ITL) anticipate them.

Acting "diabolically" 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?

Who revealed 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 you?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written six books on the U.S. Constitution. The most recent is "It Is Dangerous To Be Right When the Government Is Wrong: The Case for Personal Freedom." To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.

COPYRIGHT 2012 ANDREW P. NAPOLITANO

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Comments

4 Comments | Post Comment
As much as I want to CONTINUE to ADMIRE the Judge, I sincerely hope he DOES NOT become a Bennidict Arnold...
Comment: #1
Posted by: T-Ozzy
Thu Mar 22, 2012 5:49 AM
Dear Judge Napalitano,
Can you elaborate on on the spy technology from the point of the Third Amendment in conjunction with Griswold v. Connecticut? More specifically, can the use of spy technology be seen as the quartering of soldiers/spies even though said soldiers/spies are not physically in the house? I find it quite unnerving that someone could even be watching me without my knowledge. What if I am struggling with cancer? What if there is a misguided soldier/spy who presumes, in a moment of lapsed thought, that they can put recorded video of me in an intimate moment online? What if this technology is used to spread hate, fear, and racism against a minority instead of promoting the common defense?
To elaborate, it was the opinion of the Court by Justice William O. Douglas, who cited the third amendment, in Griswold v. Connecticut, 381 U.S. 479, 484 (1965), a case involving a Connecticut law that showed criminalization of the use of contraceptives violated the right to marital privacy, that an individual's home should be free from agents of the state. Would this extend to soldiers/spies who are not physically present? As I mentioned previously having someone watch you is frightening and has a condemning quality. It is no different than watching a common criminal who is in a jail except Americans are not locked within a prison cell; rather, they are in their homes that the court has ruled should be free of soldiers. Does this not turn American homes into a prison system? Does it not turn soldiers/spies from physical threats into immaterial specters that can strike down the innocent while leaving them defenseless? I am a martial artist but even I can not defend myself against a specter.
With all of the political flip-flopping these days I can NOT tell whether or not this interpretation of anti-quartering is a strict or liberal interpretation of the constitution. However, it is my hope that the ousting of soldiers/spies, both physical and immaterial, be what our Constitution demands. In this age of mass censorship we can not allow foreign or domestic oppressors into our homes or we will lose half of what made this country great: the right to be left alone, a.k.a privacy.
Best regards,
Chelsea Willis
Comment: #2
Posted by: Chelsea Willis
Thu Mar 22, 2012 7:26 AM
George Washington was a British officer who betrayed his country to fight for the American people. As then if the government is betraying the people, then betraying the government is Patriotic!

Protecting a government that has usurped the government of 'We the People' is an act of treason!!!!!!!!
Comment: #3
Posted by: Rev. Glen H. Inlow
Thu Mar 22, 2012 7:29 AM
And how does Agenda 21 play into this? All electronic devices becoming "digital" and "smart meters" being installed in homes that are already able to monitor device and water use throughout homes.
and didn't the FCC rule years ago the allowance for televisions to have two-way communication?
I think this has been going on for some time and it's just now being openly discussed. I think because the defecation is going to hit the rotary oscillator and the powers that be just can't help themselves in revealing the secrets any longer.
Comment: #4
Posted by: Tom
Thu Mar 22, 2012 9:01 AM
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