Those of us who practice criminal defense are well familiar with the never ending twists and turns of exceptions to one of the most basic fundamental rights Americans have-the right to privacy. The public is probably more familiar with this fundamental tenant of our Constitution than any other but many would be shocked to learn and hard pressed to understand how such a seemingly straightforward statement of a basic right has spawned such legions of litigation, exceptions and sometimes tortuous logic used by  government, attorneys or  courts of law to try to get around it or fit a particular fact pattern into it.

“The right of the people to be secure in their person, 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.” Article IV, U.S. Constitution.

While this language may seem straightforward, for centuries courts, criminal defense lawyers, and prosecutors have struggled with interpretation and application. Courts and our government have also struggled with adapting the parameters within today’s increasingly electronic dependent society.  This has happened more recently since 9/11 and the rise of ISIS and other terror groups,  balancing an individual’s right to privacy against society’s interest in combating increasing terror threats and activity. This post features an interesting article from Reason.com discussing new Senate legislation still in the drafting stages aimed at allowing the  FBI request to access everyone’s internet browser history, as long as agents are looking for spies or terrorists. While it seems that every law-abiding American can understand the vital need to combat terror on American soil, the delicate balance required to effectively do so without encroaching on innocent individual’s privacy rights is the tough part. Particularly controversial is the section that proposes that an FBI agent seeking a person’s browsing history be allowed to present the necessary probable cause not to a Judge but to a fellow FBI agent. In effect, seemingly allowing the FBI to issue itself warrants.

Both sides of this debate can present rational sounding arguments. Government, and agencies such as the FBI sometimes rationalize such exceptions by virtue of believing that if you are innocent of such activity you have nothing to worry about and that the necessity of combatting homegrown ISIS recruitment outweighs the potential 4th Amendment protection. As the article suggests, the other side counteracts that the 4th Amendment is supposed to work for the people, not the government and that the ends do not justify the means. Also, we have seen countless times where legislation passed for such emergency purposes  once passed into law has potential to be used for other unintended purposes.

However, to many criminal defense attorneys the section dispensing with the need for a Judge to sign off on a warrant is the most concerning aspect. Practicing criminal defense firms litigate 4th Amendment issues in many cases, particularly DUI and traffic cases.