On February 4, 2015 Rep. Ted Poe of Texas asked for permission to address the United States House of Representatives:
The SPEAKER pro tempore. “Under the Speaker’s announced policy of January 6, 2015, the Chair recognizes the gentleman from Texas (Mr. Poe) for 30 minutes.”
Mr. POE of Texas. “Mr. Speaker, just a few weeks ago, this Chamber was filled with Members of the House of Representatives, and all of us stood up and raised our right hands, and we took an oath to support and defend the Constitution of the United States. It is the same oath the President takes and that others take–the military. We do that for a lot of reasons, but the main reason is that, in this country, the Constitution is paramount to all other law. I agree with that philosophy. The Constitution, I think, is a marvelously written document, as well as the Declaration of Independence, which justified the reason for us to start our own country.
Attached to the Constitution is what is commonly referred to as the Bill of Rights–rights to the people and prohibitions against government intruding on those rights. They call it the “Bill of Rights.” There were originally 12, and 10 of them passed. That is why we have 10 instead of 12 under the Bill of Rights. I would like to start and talk about only one of those rights. Since there are only 30 minutes, I am going to talk only about one of those, and it is the Fourth Amendment. Let’s go through it together, Mr. Speaker.
The Fourth Amendment to the U.S. Constitution:
‘The right of the people”–that is us–“to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated”–that sounds pretty absolute to me–“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.”
Now, you don’t have to be a legal scholar or a lawyer to understand what this is talking about. It is the right of privacy–that government could go into our homes and our effects and our things and our stuff. It generally cannot do that except under circumstances which require that they go get a warrant.
I used to be a judge. Judge Green, who was just in here a while ago, used to be a judge. What that means is the police, generally, go to the judge and say: “Judge”–in a written document with the affidavit that they swear to–“the affidavit states we believe–I believe–that there are,” let’s say, “drugs–cocaine specifically–in Bobby Oglethorpe’s home.” Bobby Oglethorpe is a notorious Texas outlaw, so I am going to use him as the one. It describes what they are looking for. They say where it is, and they give the address of where Bobby Oglethorpe lives in Houston. Then I read it to see if it states probable cause.
What does that mean? There are a lot of definitions to it, but, basically, the statement proves, with the affidavit of the peace officer, that there is probable cause to believe that that item is where the police officer says it is, and is drugs, so that would be illegal.
The judge signs the warrant. What that does is it orders the police officer to go to that specific location in a certain timeframe. You can’t do it, like, forever. You don’t have 6 months to go look for it. It is usually 3 days. You go over there, and you search that address, looking for that specific stuff–cocaine, drugs–that is in the possession of Bobby Oglethorpe. Then the police officer normally would leave a document with the person at the house as to what they seized.
The officer comes back to the judge and says: “Judge, I executed the warrant you gave me to Bobby Oglethorpe’s house, and I brought you back the return on the warrant–what I seized–because I was ordered to go get it.” Then he files the return in the court with the clerk, and that varies from State to State.
Basically, the concept is, before government goes into your house or other things, an independent person–a judge–has got to separate the law–the police–from the citizen and make an independent decision as to whether or not what they are looking for is where it is, or they have not established probable cause. Now, that is a generalization of the whole concept of a warrant.
Why do we even have these things? It goes back to our history, our American history. Everything seems to be based on history, and it is good that we reflect on it.
Back in 1761, America was not a country, it was a colony, made up of 13 Colonies. At that particular time–this is not a new thing about warrants, this is not a new thing–British subjects who lived in England, specifically, had the right to have what was called a “specific warrant” issued against them before they would have to give up the item, as opposed to what I will show you as being a general warrant.
Generally speaking, before a magistrate in England would allow some British subject’s home to be searched, the peace officer would have to go to a magistrate and show some specificity as to where the document or the item was, with some type of probable cause, but in coming to the Colonies, that was not true. English magistrates who ruled over the Colonies did not give colonists the same protection as other British subjects back in England. So what would occur is this:
Those colonists, it has been said, were hiding rum, rum that had been brought into the United States–the Colonies–and other things, and they had not paid the tax on the rum. So the British would go to a magistrate and say: “Give us a general warrant to go search,” let’s say, “Bobby Oglethorpe’s great, great, great-grandfather. We will search his warehouse to find any items that may not have been stamped with the appropriate tax.”
The colonists didn’t like that. That is a general warrant. You have got a piece of paper from a magistrate, saying, “Ah, go over there, and look around. See if you can find something that is illegally in the possession of colonists without the Stamp Act on there.” These were called “writs of assistance.” They were called “general warrants.” They are pretty much the same thing. I won’t go into the difference of those two individuals.
With the colonists being the type of folks they were in Massachusetts, they took them to court. They took the British Crown to court. Their lawyer was James Otis, and he protested in a courtroom, saying, “Your warrant is not specific enough. It is too general.” The British judge, magistrate, ruled against the colonists, and there were several businessmen who were being sued in this case.
Now, that may not seem like a big deal, but John Adams, who later became President of the United States, observed all of this, and he said that act was the spark which originated the American Revolution. What is that? It is the act of government invading the privacy of the colonists. He said that sparked the American Revolution, what we now call the “Fourth Amendment,” because the colonists weren’t protected from unreasonable searches and seizures. They weren’t protected from specific warrants saying specifically what they were looking for in a specific place based on probable cause. The local magistrate would just write out a document, saying, “Go over there and look at this warehouse, and see if you find any,” in this case, “rum that doesn’t have the stamp, that doesn’t have a tax on there.”
Our history shows that this is an important concept. Now, what does it require?
It requires a specific warrant as opposed to a general warrant. It requires that it be specific as to what you are looking for. It has got to be based upon probable cause. It just doesn’t give the police the authority to go into someone’s home and look around and see if you find some contraband. You have got to have it based upon probable cause, sworn to, and it is limited in scope, as required under the Fourth Amendment, which we will read again if we have enough time.
The right of privacy was important to our ancestors–it is in the Fourth Amendment–and it is important to Americans today. We are a little unique on this right of privacy. It is really not one of the things that a lot of other countries have. Remember, it is not supposed to be violated by government, our right to be secure in our homes and in our effects.
So here we are in 2015, and where are we?
This morning, somewhere in the United States, somebody woke up and sent out some emails and made a phone call. A person may have had a meeting, so he got his little iPhone out–5 or 6 or whatever it is–and pulled up Google maps to figure out a route to get from where he was to where the meeting was. He took his vehicle or maybe jumped in a cab and checked Facebook if he were in a cab, on the phone, texted his friend, and maybe even played what is now something fun, I guess, for some people–“Candy Crush”–on the iPhone.
After the meeting is over with, this individual may head off to the office, log onto the computer, do a little G-chatting with a friend about where he planned to go for dinner that evening, and later that evening, he uploads a photograph from supper, as we call it in Texas, on his Instagram. That is, maybe, a typical day for a lot of people.
But, all during that route of the American citizen’s, the Federal Government has the ability to stalk that individual every step of the way because of the devices that he is using electronically. Maybe, until last year–until some news came out by the national media–most Americans were unaware that their every move could be tracked by Big Brother. Through the NSA, which I call the “National Spy Agency” now, the government has the ability to read citizens’ emails, to read their texts, to know their phone logs, to track the location and travel and movements of citizens, to snoop and collect information about individuals through smartphones, apps, to read G-chats, and to look at private photographs–all unknown to the citizen.
The failure to disclose any of this information until recently is why many Americans now fear government intrusion–I call it government stalking–into our lives. The stalking government has kept its Peeping Tom activities a big secret until, primarily, Edward Snowden told us all about it.
His issue is a different issue, but now we know about it.
So how did we get here? Over the years, technology has rapidly changed and given power-hungry–my opinion–bureaucrats the capability to sift through data and find out more information than ever. Just because they have the physical ability doesn’t mean that they have the constitutional right or any right to violate the Fourth Amendment because this protects Americans. The Fourth Amendment doesn’t protect government; it protects Americans. It protects citizens.
The government seems to justify the snooping, the Peeping Tom for a couple of reasons. The White House, the administration claims that NSA has no interest in monitoring American citizens; they are just looking for bad guys. Well, I have a hard time believing that. Until evidence came out to the contrary, the NSA, it seems, was snooping and spying on lots of Americans in the name of trying to catch the bad guys.
Furthermore, NSA, when they did a little investigation, they found dozens of instances where their own employees misused intelligence capabilities to spy on people–ex-girlfriends and others. Why? Simply because they had the ability.
So we have learned for years that the NSA has quietly, in my opinion, snooped and spied on millions of Americans without a warrant–and that is the key–and without their knowledge and without their consent. This is justified for a second reason, based upon the name of national security. It is said we live in terrible times. We do. We have got these terrorists running all over the world, bad guys trying to hurt us, so we at the NSA need to get this information to protect Americans from these bad guys.
Well, let’s analyze that just for a moment if we can.
We have heard reports that, well, we have caught a lot of bad guys because of this information that NSA has seized, this megadata. So during a Committee on the Judiciary hearing last year, I asked Deputy Attorney General James Cole this question: How many criminal cases have been filed based upon this massive seizure of information by NSA, collecting information on Americans without the use of a warrant and storing it? And to my knowledge it still exists. How many criminal cases?
He testified: Maybe one. Maybe one.
So this nonsense about we are doing all of this because we have to catch the bad guys, they have got one criminal case that they can talk about. Even if there were more, it does not justify, in my opinion, the massive seizure of data without constitutional safeguards.
Let’s read it one more time. “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”–in this case no warrants at all are issuing–“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.”
That is not what is occurring. It is just massive amounts of information are being seized.
Let me try to describe it this way. Let’s go back to Bobby Oglethorpe. Let’s say that Bobby Oglethorpe lives close to where I do in Atascocita, Texas, and the police come to me as a judge and say: Judge, we know that Bobby Oglethorpe lives in this ZIP Code here, but we don’t know where he lives, and he is no good. He is a criminal, and he is in possession of firearms and drugs, and all kinds of illegal things he has done, but we don’t know which house he is in in this particular ZIP Code, so we want to go search all the houses in the ZIP Code and hopefully we will catch him.
No judge in this country would sign a warrant and say: All right. Have at it. Start searching all the houses looking for this one guy with all this bad illegal stuff that he is in possession of.
No judge would do that. Why? Because it violates the Fourth Amendment. Why? Because it is not specific enough. It is a general warrant, like the British were imposing on the Colonies that, as John Adams said, sparked the American Revolution. Wouldn’t do that.
Or another example, it is like finding a needle in a haystack. The government wants to seize the whole haystack. They can’t do that. They have got to find the needle. They have got to be specific in their warrant. So, in my opinion, based upon the Fourth Amendment, the activity of the NSA, by seizing lots of data, violates the Fourth Amendment of the Constitution.
There are other examples.
So we talked about NSA seizure of data, and to my knowledge, like I said, they still store all this information.
May I inquire of the Speaker how much time I have left?
The SPEAKER pro tempore. The gentleman has 12 minutes remaining.
Mr. POE of Texas. Thank you. I appreciate it.
NSA. Let’s move on to what is called ECPA. We will talk about the IRS a little bit.
This spring, most Americans are going to be filing taxes, their tax returns, and many Americans, including me, are concerned about the IRS’ ability to take information from Americans without their consent or without a warrant. Sometimes that includes emails. So let’s talk specifically about the concept of government seizure of emails without consent of the person who sent it or received it and without a warrant.
Current Federal law is that, if somebody has an email within 6 months of when that email was sent, that email, to be obtained by government–not just law enforcement, but any government agency–they have to get a warrant to seize that. But as soon as that 160 days runs, past 160 days, the government doesn’t get a warrant because the law doesn’t require it. I think in the spirit of the Fourth Amendment, the Fourth Amendment should require that.
Email, what is email? That is an electronic message sent to another person.
Let’s go back to regular mail or snail mail, which some people call it. If I write a letter and I seal the envelope and I put the postage on there and I
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send it, go put it in the mailbox, one of those blue mailboxes, and I drop that in the mailbox, the government does not have the authority to go in that mailbox and take the letter out, read the letter, seize the letter without a warrant.
So it flows through the United States postal system from wherever to wherever, and it lands in somebody else’s mailbox. That mail, generally speaking, is protected under the Fourth Amendment, because it violates the Fourth Amendment if government seizes it and goes into the contents without a warrant.
The same should apply to emails. It is communication. It is just done electronically. But the law does not allow–let me say it another way. If emails are over 6 months old, Americans should be aware of the fact that government may seize those emails from a private company without your knowledge, without your consent, and without a warrant.
That is why I have introduced, along with Representative Zoe Lofgren from California, that the law should be that emails are protected, that it is a right of privacy and it is an expectation of privacy for Americans that emails be protected and that government should be getting a warrant before they seize those documents, because it is a violation at least in the spirit of the Fourth Amendment. I hope that that legislation does finally come to the floor and we get a vote on protecting the Fourth Amendment, the right of privacy for Americans when it comes to emails.
The same applies not only just to emails, but under the circumstances, it would apply to geolocation devices that the government knows where you are. I think the government, to keep up with you, needs a warrant to stalk you throughout the United States.
The third thing I wanted to mention in the remaining time is a completely different issue, but it has to do with drones, the right of privacy. We are in the drone age. It is estimated that by 2030 we will have 30,000 drones over the skies of the United States, 30,000 of them.
Drones are a marvelous invention. They are highly technical. They can be very small. You can get one at a local store that you can put in the palm of your hand. No question about it, there are good uses for drones. Right now the law is that the FAA regulates the use of drones throughout the United States. It may permit some; it may not permit, may refuse to permit them. It is a bureaucratic decision by the FAA.
Congress needs to weigh in on the issue of drones and set down constitutional guidelines. People need to know the rules. Law enforcement needs to know the rules, and private citizens need to know the rules about their use of drones. And basically, the Fourth Amendment ought to apply to the use of a drone except with the exigent circumstances that already apply to the Fourth Amendment–high-speed chases, disasters, fires, et cetera–but we need some guidelines on the issue of drones.
Congress has the responsibility to protect the Fourth Amendment of the surveillance of Americans by either law enforcement or by private citizens and develop a standard for both law enforcement and for private citizens to know what the standard is. Yes, there are reasons why we should use them, and the law should allow those, but Congress needs to make the decision, not the FAA.
I have a local sheriff, or the sheriff in Texas where I am from. He generally says he doesn’t want to use drones because he doesn’t know what the courts are going to decide down the road as to whether or not that use of a drone was a lawful or unlawful violation of the Fourth Amendment. So rather than wait for the courts to decide if this specific use is or is not a violation of the Fourth Amendment, Congress needs to come up with guidelines about the design and the protection of the Fourth Amendment that drones can only be used in certain circumstances; otherwise, they are not allowed to be used because they violate the Fourth Amendment of the United States.
So those are three issues that have the right of privacy that are being, I think, chilled today because there is more and more government intrusion into all of those areas: into the massive data of phone information, information that is put on your iPhone, for example, that is being seized, can be seized without knowledge, without warrant; the massive amount of emails that can be seized–we really don’t know how much is being seized because over 6 months your personal email is not protected by law; government agencies, not just law enforcement, can seize that–and then the skies will have 30,000 of those drones.
There needs to be some regulations within protection of the Fourth Amendment, and we need to work with industry and government to outline what those rules ought to be to protect the Fourth Amendment, protect the right of privacy of individuals to be secure in their homes, in their papers, and their effects from government intervention and government intrusion. Congress should set the standard for what a reasonable expectation of privacy is, especially in those areas that I mentioned and the one regarding drones as well.
So I hope that we see some movement in this legislation. Once again, Zoe Lofgren and I have introduced legislation, as well as others, to protect the right of individuals to be free from searches of their emails after 6 months without a search warrant. We have that legislation pending as well. Hopefully, we can rein in what I call the stalking government about stalking American citizens.
America is not about keeping up and following every citizen in the United States by government. That is what other countries do. That is what countries like the Soviet Union used to do. That is not what America should be doing, and Congress needs to weigh in on this to protect individuals’ right of privacy under the Fourth Amendment, which was the spark, according to John Adams, to the American Revolution, that concept of the Fourth Amendment being violated.
And that is just the way it is.
I yield back the balance of my time.”
Speaker: “Gentleman yields his time.”
Source: Congressional Record
See video: How the Government Tracks You: NSA Surveillance https://www.youtube.com/watch?v=2YsZoqwRnKE
See video: Edward Snowden: Here’s how we take back the Internet https://www.youtube.com/watch?v=yVwAodrjZMY