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The Only Privacy the Feds Protect is Their Own

Judge Andrew P. Napolitano on

Last week, The New York Times revealed that in late 2017 and early 2018, prosecutors in the Department of Justice persuaded a federal grand jury to subpoena the telephone, email and texting records of about 20 people, including two members of Congress and their families, staffs and investigators, and one of the minor children of a staff member. Also subpoenaed were the records of Donald F. McGahn II, then the White House chief counsel, and his wife.

In all, the government sought data on 73 phone numbers and 36 email addresses. The subpoenas identified the targets only by telephone number and computer identification number.

The subpoenas were served on Apple, the custodian of these records. Also served upon Apple was a gag order signed by a federal judge instructing Apple not to tell anyone it had received the subpoenas. The government sought and obtained three annual extensions of the gag order. Such an order should have been challenged, as it is unconstitutional on its face.

The records sought and obtained were "metadata." Metadata is not content; yet it is everything but. Thus, the records that Apple surrendered showed who spoke to whom and when, who emailed whom and when, and who texted whom and when, but it did not show what was actually communicated.

Can the DOJ engage in a fishing expedition looking for leaks? Can it obtain personal records of members of Congress? Can it silence those who know about this? In a word: No, no and no.

Here is the backstory.

 

Governments have been seeking records in criminal cases since the beginning of the American republic. Until 1986, if the government served a subpoena for your records on your telephone provider, financial institution, physician or lawyer, the custodian would normally tell you of the subpoena, thereby giving you an opportunity to challenge it. Some sophisticated custodians -- like Apple, though not in this case -- have filed the challenge in behalf of their clients.

In the litigation over such a challenge, the owner of the records would become aware of the government's wish to seize them and would find out why it sought them. There is no threat to the records themselves, as they are in the hands of the custodian, not the target. This was a fair system that worked well for 200 years.

All this changed in 1986 with the congressional enactment of the highly misnamed Electronic Communications Privacy Act. This law permits the feds to obtain metadata -- but not content -- and to obtain a court order prohibiting the custodian from telling its client.

Stated differently, under the common law, and long-standing, 200-year-old federal practice, the target could challenge the subpoena. But since 1986, that has not been the case. This so-called Privacy Act, in reality, is a pathway to invade privacy. The only privacy this statute protects is the government's.

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Copyright 2021 Creators Syndicate, Inc.
 

 

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