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Justice Thurgood Marshall wrote that “grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure.” To justify the enactment of sweeping anti-terrorism legislation after the Sept. 11 terrorist attacks on our country, President George W. Bush and Congress would have us believe that the freedoms protected by the Fourth Amendment of the U.S. Constitution are too costly to endure. Among the many provisions included in this legislation is the power to conduct “roving” wiretaps. A roving wiretap permits electronic surveillance of an individual rather than a specific telephone, cell phone or computer terminal. But a wiretap that follows a person instead of a phone is at odds with the text and history of the Fourth Amendment, which requires that a judicial warrant particularly describe the place to be searched and guarantees all people the right to be free from unreasonable searches and seizures by the government. WHY IT SAYS WHAT IT SAYS The second clause of the Fourth Amendment states: “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.” The warrant clause requires greater precision for a search than for a seizure. The requirement that a search warrant particularly describe the place to be searched was designed to bar multiple-specific search warrants that identified the target or object of a search or arrest, but authorized many places to be searched. The Framers were well aware of the dangers associated with multiple-specific search warrants. In 1706, for example, colonial officials used such warrants to search every home in New Hampshire. The First Congress also recognized that particularity was an essential safeguard to prevent the issuance of general search warrants. The Collection Act of 1789 limited federal search warrants to single structures. By requiring probable cause and particularity, the Framers of the Fourth Amendment intended not only to bar general searches, but also to ensure that lawful searches be restricted to a single place. Roving wiretaps contradict the text of the Fourth Amendment, which plainly demands singularity of “place” for search warrants. The U.S. Supreme Court has recognized that the particularity requirement is not a quaint ideal that is inconsistent with modern law enforcement needs. The Court has explained that the probable cause and particularity requirements ensure that a police search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Yet, Attorney General John Ashcroft insists that roving surveillance does not violate the Fourth Amendment. He argues that roving wiretaps do not eliminate the particularity requirement for search warrants; roving wiretaps merely substitute particularity of person for particularity of place. One might argue that a wiretap that follows the person rather than a particular phone better protects privacy than a traditional search warrant because when the government obtains a traditional warrant to monitor the telephones of a particular location, all the conversations that occur at that particular location will be subject to surveillance. Under the new law, the government contends that it will focus only on the conversations of the target. But if the government can assign the wiretap to the person so that it can gain intelligence from a person who uses multiple telephones or changes cellular phones, then the conversations of all people using those devices will be overheard. For example, if the government suspects that a particular target uses different pay phones at Boston’s Logan Airport, then the government would have the power to wire all the public telephones at Logan Airport and the discretion to decide which conversations to monitor. HIGH COURT PRECEDENT The Supreme Court has already recognized that particularizing the target of a government search or seizure violates the privacy rights of third parties who are subjected to unreasonable governmental intrusion while officers look for their target or evidence of criminal conduct. In Steagald v. U.S. (1981), the Court ruled that an arrest warrant for a particular individual could not be used as lawful authority to search the home of a third party not named in the warrant. Recalling the Framers’ experience with general warrants, which often specified an offense, and left to the discretion of the officer the decision as to which persons to arrest and which places to search, the Steagald Court concluded that the arrest warrant in that case suffered from a similar flaw: It specified only the target of the search and left police with the discretion as to which particular homes to search. An additional constitutional problem with roving wiretaps is expanded law enforcement discretion. Although a judge will review the government’s initial application for a roving wiretap, when, where and how often monitoring will occur is left to the FBI’s discretion. The telephone conversations of hundreds of people who expected those communications to be private will be overheard, even though the government can show probable cause for just a single individual. Moreover, if federal agents are given the authority to monitor all the computer equipment a single person may use, the e-mail messages of thousands of individuals will be subjected to government search. These results cannot be reconciled with the text or history of the Fourth Amendment. Indeed, the amendment was intended to check, and not expand, police power and discretion. The battle over the new anti-terrorism law has been described as a struggle between civil liberties and law enforcement that the authorities have won. This description is only partially accurate. The reality is that Congress and the president have amended the protections provided by the Fourth Amendment without the consent of the people, as required by the Constitution. Tracey Maclin is a professor of law at Boston University, where he teaches constitutional law and criminal procedure.

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