December 7, 2015
The Honorable Bob Goodlatte
House Judiciary Committee
2138 Rayburn House Office Bldg
Washington, DC 20515
Dear Chairman Goodlatte:
With remarkable constitutional hypocrisy not disclosed upfront by Members of Congress or Silicon Valley lobbyists selling the Email Privacy Act (HR 699) to the public, and one certainly not needed to cure a flaw in the Electronic Communications Privacy Act (ECPA), that bill now before the Judiciary Committee is, on the one hand, being advertised using the correct principle that the Fourth Amendment in the 21st Century requires probable cause and warrants signed by judges for government officials to obtain and read emails, but Section 3(a)(2) of that very bill broadly and arbitrarily re-authorizes use of judge-less warrants called “administrative subpoenas” by federal and state agencies and officials to obtain and read private emails and other “papers” without probable cause or judge-issued warrants. (FN: Section 3(a)(2) of HR 699 adds: “(h) RULE OF CONSTRUCTION.—Nothing in this section or in section 2702 shall be construed to limit the authority of a governmental entity to use an administrative subpoena authorized under a Federal or State statute . . . .”)
While Google and other Silicon Valley companies would be protected under the bill, federal and state bureaucrats are nevertheless encouraged by the bill to issue administrative subpoenas to individuals, small businesses, labor unions, charities, and advocacy nonprofit organizations to obtain not just private emails, but other papers protected by the Fourth Amendment.
Administrative subpoenas are issued unilaterally by government bureaucrats or officials without oath and affirmation of probable cause, and are not signed by objective judges, thereby violating ‘[t]he right of the people to be secure in their persons, houses, papers, and effects” guaranteed by the Fourth Amendment.
Following last week’s committee hearing on the Email Privacy Act, Kathryn Watson of The Daily News Foundation quotes your spokesman that “[administrative s]ubpoenas have been held to be constitutional under the 4th Amendment’s reasonableness clause.” (“Congressmen Move To Protect Silicon Valley, But Ignore Individual Privacy,” December 2, 2015.) While adherents of judicial supremacy believe that court decisions are the final word on the Constitution, Section 3(a)(2) of HR 699 quite remarkably violates the bill’s own constitutional bases.
In addition to their inherent unconstitutionality as admitted by proponents of the Email Privacy Act, administrative subpoenas have other harmful consequences. In his recent essay about an administrative subpoena issued by the New York Attorney General targeting climate speech (“The Unconstitutionality of the Exxon Subpoena,”), Columbia Law School’s Maurice and Hilda Friedman Professor Philip laments “the implications for freedom of speech and political dissent” when government officials target those who disagree with the orthodoxy of those in power, and notes that when administrative subpoenas are used to get remunerative settlements, that “is akin to extortion.”
As also reported last week by The Daily Caller News Foundation (“Congress To Protect Worst Bureaucratic Outrage You’ve Never Heard About”), a cluster of our conservative friends wrote about the need for warrants signed by judges after probable cause has been presented: “This principle, enshrined in the Fourth Amendment — and before that, in the June 1776 Virginia Declaration of Rights — is the crown jewel of American civil liberties.”
Indeed, even the Writs of Assistance, which significantly contributed to the American Revolutionary War, were required to be signed by judges.
The Virginia Constitution’s version of the “Fourth Amendment” drafted by George Mason protects against “general warrants,” but is less comprehensive than the federal version drafted by fellow-Virginian James Madison, which states that “no warrants shall issue, but upon probable cause, supported by oath or affirmation.” (Emphasis added.)
A May 15, 1769 letter about the Writs of Assistance by Virginia Attorney General John Randolph confirms the basic requirement understood by those who adopted the Virginia Declaration of Rights seven years later — and the Fourth Amendment adopted even later — that judges must sign warrants. Randolph’s letter confirms that general warrants are barred, but “specific” Writs of Assistance would have been constitutional (legal) when not “standing” (meaning of specified and limited duration) and “granted from time to time, as the information of the Officer to the Supreme Court, on oath, may render necessary.” (FN: Even in Massachusetts, the center of controversy over the Writs of Assistance, judges of the Superior Court needed to sign Writs of Assistance. Connecticut’s Chief Justice Trumbull wrote in 1769 that the Writs “crept into use by the inattention of the people, and the bad practices of designing men,” and Connecticut had “taken the lead in a matter of so much Consequence to the Liberty, the Property, and the Security, of the Subject.”)
Colonial judges and even King George III’s Attorney General William De Grey recognized that government agents may not unilaterally issue their own warrants. See, Fitzgibbons, ”New York ‘Climate Speech’ Investigation Unconstitutional Even Under King George III,” CNSNews, November 16, 2015.
Administrative subpoenas for emails or papers are impossible to reconcile with the Fourth Amendment. American law even predating the Fourth Amendment tells us they are unconstitutional and, in the parlance of that time, illegal. The provision in the Email Privacy Act expressly, broadly, and arbitrarily re-authorizing administrative subpoenas to be used against all Americans is not only not needed to fix ECPA, it is stunningly disrespectful of Americans’ rights to the security and privacy of their emails, and should be dropped from HR 699.
Very truly yours,
Mark J. Fitzgibbons
President of Corporate Affairs
American Target Advertising, Inc.