Democrats got plenty of air time as they rushed to exploit the Orlando terror attack as an excuse to curtail Second Amendment rights. Less publicized, however, was an effort by some Senate Republicans to take advantage of the massacre by limiting our freedoms under the Fourth Amendment.
While House Democrats were basking in their own glory during their inane anti-gun sit-in, Senate Republicans on Wednesday were pushing an amendment to allow the government to access an individual’s Internet footprint — browsing history, email data and other communications — through an “administrative subpoena” instead of a warrant. Administrative subpoenas require no judicial oversight.
Supporters of the plan fell two votes shy of the 60 needed to move the proposal forward.
Among the few Republicans coming down on the side of the Bill of Rights was Nevada Sen. Dean Heller, along with Sens. Rand Paul of Kentucky and Mike Lee of Utah. Oregon Democrat Ron Wyden pointed out that it was hypocritical for the GOP senators to defend gun rights while, at the same time, pushing to undermine the constitutional protections against unlawful searches and seizures.
Arizona Sen. John McCain, one of the bill’s biggest proponents, argued the measure would provide the FBI with “an important tool” in the fight against terror. FBI Director James Comey told Congress earlier this year that collecting data on electronic communications was the agency’s top priority.
But the Bill of Rights isn’t just a piece of paper to be shoved in a desk drawer every time it might make things more convenient for law enforcement. We’ve already seen with the government’s bulk collection of phone data how well-intended exceptions to constitutional protections too often lead to abuse.
In fact, as Sen. Wyden pointed out, the FBI “already has the power to demand these electronic records with a court order” and, as the Washington Post reported, law enforcement agencies can even circumvent that requirement “in emergencies.”
In addition, the bill was likely going nowhere in the House, where Republicans earlier this year won unanimous support for a measure preventing the government from using administrative subpoenas instead of warrants to access individual emails.
Sen. Heller deserves credit for bucking his party’s leadership and coming down in defense of the Fourth Amendment. When the FBI needs access to individual Internet data in order to fight Islamic terror, agents shouldn’t have much trouble convincing judges to issue warrants when necessary.