Government snooping through medical records and email

  • 30 July 2015
  • NormanL
Government snooping through medical records and email

The federal government's increasing use of subpoenas without first getting a warrant -- let alone asking a judge to consider the matter -- is generating a lot of pushback from civil libertarians and conservatives. And rightly so. The fed's latest targets are private medical records:

It’s a case that concerns — but doesn’t surprise — former virginia">Virginia Attorney General Ken Cuccinelli, who joined U.S. Sen. Rand Paul, R-Ky., in suing the National Security Administration over its metadata cell phone collection.

“Literally, they let the DEA just go wandering through people’s medical records just to make sure laws aren’t being broken. Really? Are you serious?” Cuccinelli told the Daily Caller News Foundation.

Many Americans may be surprised to know federal agencies can and do routinely access personal information, generally from businesses, without first persuading a judge that they have “probable cause” of finding specified items, as required by the Fourth Amendment.

Agencies simply need to claim the information is “relevant” or sparks “official curiosity,” said Christopher Slobogin, professor at Vanderbilt University’s Law School who has written on administrative subpoenas.

“Administrative subpoenas have become the go-to mechanism for prosecutors trying to paint evidence,” Slobogin said. ‘They can be obtained almost at the drop of the hat.”

All of which directly undermines the Fourth Amendment. But the problem doesn't end with the DEA's fishing expeditions. congress">Congress is attempting to put some restrictions on government snooping into private emails. But its remedies may end up making matters even worse: should shock the conscience of Americans that H.R. 699 and S. 356 actually authorize and encourage hundreds of federal and state agencies to violate the Fourth Amendment with respect to the actual content of private emails.

While purporting to require warrants signed by judges to search or seize emails from email storage systems, these bills actually expressly allow and give legislative imprimatur to federal and state agencies to issue judge-less administrative subpoenas to obtain private emails and content from individuals, businesses and nonprofit organization, i.e., every person and private entity in America except email storage providers.

What the NSA has been doing for national security purposes in blindly collecting metadata pales in comparison to encouraging hundreds, perhaps thousands, of federal and state agencies to collect and read the actual content of emails for far more mundane and non-exigent purposes than national security. 

Yes, the government has a constitutional duty to protect the nation. But in the name of security, government has taken that duty to dangerous extremes.