[Congressional Record Volume 161, Number 19 (Wednesday, February 4, 2015)]
[House]
[Pages H802-H804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE STALKING GOVERNMENT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 2015, the Chair recognizes the gentleman from Texas (Mr. 
Poe) for 30 minutes.
  Mr. POE of Texas. Mr. Speaker, just a few weeks ago, this Chamber was 
filled with Members of the House of Representatives, and all of us 
stood up and raised our right hands, and we took an oath to support and 
defend the Constitution of the United States. It is the same oath the 
President takes and that others take--the military. We do that for a 
lot of reasons, but the main reason is that, in this country, the 
Constitution is paramount to all other law. I agree with that 
philosophy. The Constitution, I think, is a marvelously written 
document, as well as the Declaration of Independence, which justified 
the reason for us to start our own country.
  Attached to the Constitution is what is commonly referred to as the 
Bill of Rights--rights to the people and prohibitions against 
government intruding on those rights. They call it the ``Bill of 
Rights.'' There were originally 12, and 10 of them passed. That is why 
we have 10 instead of 12 under the Bill of Rights. I would like to 
start and talk about only one of those rights. Since there are only 30 
minutes, I am going to talk only about one of those, and it is the 
Fourth Amendment. Let's go through it together, Mr. Speaker.
  The Fourth Amendment to the U.S. Constitution:
  ``The right of the people''--that is us--``to be secure in their 
persons, houses, papers, and effects against unreasonable searches and 
seizures shall not be violated''--that sounds pretty absolute to me--
``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.''
  Now, you don't have to be a legal scholar or a lawyer to understand 
what this is talking about. It is the right of privacy--that government 
could go into our homes and our effects and our things and our stuff. 
It generally cannot do that except under circumstances which require 
that they go get a warrant.
  I used to be a judge. Judge Green, who was just in here a while ago, 
used to be a judge. What that means is the police, generally, go to the 
judge and say: ``Judge''--in a written document with the affidavit that 
they swear to--``the affidavit states we believe--I believe--that there 
are,'' let's say, ``drugs--cocaine specifically--in Bobby Oglethorpe's 
home.'' Bobby Oglethorpe is a notorious Texas outlaw, so I am going to 
use him as the one. It describes what they are looking for. They say 
where it is, and they give the address of where Bobby Oglethorpe lives 
in Houston. Then I read it to see if it states probable cause.
  What does that mean? There are a lot of definitions to it, but, 
basically, the statement proves, with the affidavit of the peace 
officer, that there is probable cause to believe that that item is 
where the police officer says it is, and is drugs, so that would be 
illegal.
  The judge signs the warrant. What that does is it orders the police 
officer to go to that specific location in a certain timeframe. You 
can't do it, like, forever. You don't have 6 months to go look for it. 
It is usually 3 days. You go over there, and you search that address, 
looking for that specific stuff--cocaine, drugs--that is in the 
possession of Bobby Oglethorpe. Then the police officer normally would 
leave a document with the person at the house as to what they seized.
  The officer comes back to the judge and says: ``Judge, I executed the 
warrant you gave me to Bobby Oglethorpe's house, and I brought you back 
the return on the warrant--what I seized--because I was ordered to go 
get it.'' Then he files the return in the court with the clerk, and 
that varies from State to State.
  Basically, the concept is, before government goes into your house or 
other things, an independent person--a judge--has got to separate the 
law--the police--from the citizen and make an independent decision as 
to whether or not what they are looking for is where it is, or they 
have not established probable cause. Now, that is a generalization of 
the whole concept of a warrant.
  Why do we even have these things? It goes back to our history, our 
American history. Everything seems to be based on history, and it is 
good that we reflect on it.
  Back in 1761, America was not a country, it was a colony, made up of 
13 Colonies. At that particular time--this is not a new thing about 
warrants, this is not a new thing--British subjects who lived in 
England, specifically, had the right to have what was called a 
``specific warrant'' issued against them before they would have to give 
up the item, as opposed to what I will show you as being a general 
warrant.
  Generally speaking, before a magistrate in England would allow some 
British subject's home to be searched, the peace officer would have to 
go to a magistrate and show some specificity as to where the document 
or the item was, with some type of probable cause, but in coming to the 
Colonies, that was not true. English magistrates who ruled over the 
Colonies did not give colonists the same protection as other British 
subjects back in England. So what would occur is this:
  Those colonists, it has been said, were hiding rum, rum that had been 
brought into the United States--the Colonies--and other things, and 
they had not paid the tax on the rum. So the British would go to a 
magistrate and say: ``Give us a general warrant to go search,'' let's 
say, ``Bobby Oglethorpe's great, great, great-grandfather. We will 
search his warehouse to find any items that may not have been stamped 
with the appropriate tax.''
  The colonists didn't like that. That is a general warrant. You have 
got a piece of paper from a magistrate, saying, ``Ah, go over there, 
and look around. See if you can find something that is illegally in the 
possession of colonists without the Stamp Act on there.'' These were 
called ``writs of assistance.'' They were called ``general warrants.'' 
They are pretty much the same thing. I won't go into the difference of 
those two individuals.
  With the colonists being the type of folks they were in 
Massachusetts, they took them to court. They took the British Crown to 
court. Their lawyer was James Otis, and he protested in a courtroom, 
saying, ``Your warrant is not specific enough. It is too general.'' The 
British judge, magistrate, ruled against the colonists, and there were 
several businessmen who were being sued in this case.
  Now, that may not seem like a big deal, but John Adams, who later 
became President of the United States, observed all of this, and he 
said that act was the spark which originated the American Revolution. 
What is that? It is the act of government invading the privacy of the 
colonists. He said that sparked the American Revolution, what we now 
call the ``Fourth Amendment,'' because the colonists weren't protected 
from unreasonable searches and seizures. They weren't protected from 
specific warrants saying specifically what they were looking for in a 
specific place based on probable cause. The local magistrate would just 
write out a document, saying, ``Go over there and look at this 
warehouse, and see if you find any,'' in this case, ``rum that doesn't 
have the stamp, that doesn't have a tax on there.''
  Our history shows that this is an important concept. Now, what does 
it require?
  It requires a specific warrant as opposed to a general warrant. It 
requires that it be specific as to what you are looking for. It has got 
to be based upon probable cause. It just doesn't give the police the 
authority to go into someone's home and look around and see if you find 
some contraband. You have got to have it based upon probable cause, 
sworn to, and it is limited in scope, as required under the Fourth 
Amendment, which we will read again if we have enough time.
  The right of privacy was important to our ancestors--it is in the 
Fourth Amendment--and it is important to

[[Page H803]]

Americans today. We are a little unique on this right of privacy. It is 
really not one of the things that a lot of other countries have. 
Remember, it is not supposed to be violated by government, our right to 
be secure in our homes and in our effects.
  So here we are in 2015, and where are we?
  This morning, somewhere in the United States, somebody woke up and 
sent out some emails and made a phone call. A person may have had a 
meeting, so he got his little iPhone out--5 or 6 or whatever it is--and 
pulled up Google maps to figure out a route to get from where he was to 
where the meeting was. He took his vehicle or maybe jumped in a cab and 
checked Facebook if he were in a cab, on the phone, texted his friend, 
and maybe even played what is now something fun, I guess, for some 
people--``Candy Crush''--on the iPhone.
  After the meeting is over with, this individual may head off to the 
office, log onto the computer, do a little G-chatting with a friend 
about where he planned to go for dinner that evening, and later that 
evening, he uploads a photograph from supper, as we call it in Texas, 
on his Instagram. That is, maybe, a typical day for a lot of people.
  But, all during that route of the American citizen's, the Federal 
Government has the ability to stalk that individual every step of the 
way because of the devices that he is using electronically. Maybe, 
until last year--until some news came out by the national media--most 
Americans were unaware that their every move could be tracked by Big 
Brother. Through the NSA, which I call the ``National Spy Agency'' now, 
the government has the ability to read citizens' emails, to read their 
texts, to know their phone logs, to track the location and travel and 
movements of citizens, to snoop and collect information about 
individuals through smartphones, apps, to read G-chats, and to look at 
private photographs--all unknown to the citizen.
  The failure to disclose any of this information until recently is why 
many Americans now fear government intrusion--I call it government 
stalking--into our lives. The stalking government has kept its Peeping 
Tom activities a big secret until, primarily, Edward Snowden told us 
all about it.

                              {time}  1830

  His issue is a different issue, but now we know about it.
  So how did we get here? Over the years, technology has rapidly 
changed and given power-hungry--my opinion--bureaucrats the capability 
to sift through data and find out more information than ever. Just 
because they have the physical ability doesn't mean that they have the 
constitutional right or any right to violate the Fourth Amendment 
because this protects Americans. The Fourth Amendment doesn't protect 
government; it protects Americans. It protects citizens.
  The government seems to justify the snooping, the Peeping Tom for a 
couple of reasons. The White House, the administration claims that NSA 
has no interest in monitoring American citizens; they are just looking 
for bad guys. Well, I have a hard time believing that. Until evidence 
came out to the contrary, the NSA, it seems, was snooping and spying on 
lots of Americans in the name of trying to catch the bad guys.
  Furthermore, NSA, when they did a little investigation, they found 
dozens of instances where their own employees misused intelligence 
capabilities to spy on people--ex-girlfriends and others. Why? Simply 
because they had the ability.
  So we have learned for years that the NSA has quietly, in my opinion, 
snooped and spied on millions of Americans without a warrant--and that 
is the key--and without their knowledge and without their consent. This 
is justified for a second reason, based upon the name of national 
security. It is said we live in terrible times. We do. We have got 
these terrorists running all over the world, bad guys trying to hurt 
us, so we at the NSA need to get this information to protect Americans 
from these bad guys.
  Well, let's analyze that just for a moment if we can.
  We have heard reports that, well, we have caught a lot of bad guys 
because of this information that NSA has seized, this megadata. So 
during a Committee on the Judiciary hearing last year, I asked Deputy 
Attorney General James Cole this question: How many criminal cases have 
been filed based upon this massive seizure of information by NSA, 
collecting information on Americans without the use of a warrant and 
storing it? And to my knowledge it still exists. How many criminal 
cases?
  He testified: Maybe one. Maybe one.
  So this nonsense about we are doing all of this because we have to 
catch the bad guys, they have got one criminal case that they can talk 
about. Even if there were more, it does not justify, in my opinion, the 
massive seizure of data without constitutional safeguards.
  Let's read it one more time. ``The right of the people to be secure 
in their persons, houses, papers, and effects against unreasonable 
searches and seizures, shall not be violated, and no warrants shall 
issue''--in this case no warrants at all are issuing--``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.''
  That is not what is occurring. It is just massive amounts of 
information are being seized.
  Let me try to describe it this way. Let's go back to Bobby 
Oglethorpe. Let's say that Bobby Oglethorpe lives close to where I do 
in Atascocita, Texas, and the police come to me as a judge and say: 
Judge, we know that Bobby Oglethorpe lives in this ZIP Code here, but 
we don't know where he lives, and he is no good. He is a criminal, and 
he is in possession of firearms and drugs, and all kinds of illegal 
things he has done, but we don't know which house he is in in this 
particular ZIP Code, so we want to go search all the houses in the ZIP 
Code and hopefully we will catch him.
  No judge in this country would sign a warrant and say: All right. 
Have at it. Start searching all the houses looking for this one guy 
with all this bad illegal stuff that he is in possession of.
  No judge would do that. Why? Because it violates the Fourth 
Amendment. Why? Because it is not specific enough. It is a general 
warrant, like the British were imposing on the Colonies that, as John 
Adams said, sparked the American Revolution. Wouldn't do that.
  Or another example, it is like finding a needle in a haystack. The 
government wants to seize the whole haystack. They can't do that. They 
have got to find the needle. They have got to be specific in their 
warrant. So, in my opinion, based upon the Fourth Amendment, the 
activity of the NSA, by seizing lots of data, violates the Fourth 
Amendment of the Constitution.
  There are other examples.
  So we talked about NSA seizure of data, and to my knowledge, like I 
said, they still store all this information.
  May I inquire of the Speaker how much time I have left?
  The SPEAKER pro tempore. The gentleman has 12 minutes remaining.
  Mr. POE of Texas. Thank you. I appreciate it.
  NSA. Let's move on to what is called ECPA. We will talk about the IRS 
a little bit.
  This spring, most Americans are going to be filing taxes, their tax 
returns, and many Americans, including me, are concerned about the IRS' 
ability to take information from Americans without their consent or 
without a warrant. Sometimes that includes emails. So let's talk 
specifically about the concept of government seizure of emails without 
consent of the person who sent it or received it and without a warrant.
  Current Federal law is that, if somebody has an email within 6 months 
of when that email was sent, that email, to be obtained by government--
not just law enforcement, but any government agency--they have to get a 
warrant to seize that. But as soon as that 160 days runs, past 160 
days, the government doesn't get a warrant because the law doesn't 
require it. I think in the spirit of the Fourth Amendment, the Fourth 
Amendment should require that.
  Email, what is email? That is an electronic message sent to another 
person.
  Let's go back to regular mail or snail mail, which some people call 
it. If I write a letter and I seal the envelope and I put the postage 
on there and I

[[Page H804]]

send it, go put it in the mailbox, one of those blue mailboxes, and I 
drop that in the mailbox, the government does not have the authority to 
go in that mailbox and take the letter out, read the letter, seize the 
letter without a warrant.
  So it flows through the United States postal system from wherever to 
wherever, and it lands in somebody else's mailbox. That mail, generally 
speaking, is protected under the Fourth Amendment, because it violates 
the Fourth Amendment if government seizes it and goes into the contents 
without a warrant.
  The same should apply to emails. It is communication. It is just done 
electronically. But the law does not allow--let me say it another way. 
If emails are over 6 months old, Americans should be aware of the fact 
that government may seize those emails from a private company without 
your knowledge, without your consent, and without a warrant.
  That is why I have introduced, along with Representative Zoe Lofgren 
from California, that the law should be that emails are protected, that 
it is a right of privacy and it is an expectation of privacy for 
Americans that emails be protected and that government should be 
getting a warrant before they seize those documents, because it is a 
violation at least in the spirit of the Fourth Amendment. I hope that 
that legislation does finally come to the floor and we get a vote on 
protecting the Fourth Amendment, the right of privacy for Americans 
when it comes to emails.
  The same applies not only just to emails, but under the 
circumstances, it would apply to geolocation devices that the 
government knows where you are. I think the government, to keep up with 
you, needs a warrant to stalk you throughout the United States.
  The third thing I wanted to mention in the remaining time is a 
completely different issue, but it has to do with drones, the right of 
privacy. We are in the drone age. It is estimated that by 2030 we will 
have 30,000 drones over the skies of the United States, 30,000 of them.
  Drones are a marvelous invention. They are highly technical. They can 
be very small. You can get one at a local store that you can put in the 
palm of your hand. No question about it, there are good uses for 
drones. Right now the law is that the FAA regulates the use of drones 
throughout the United States. It may permit some; it may not permit, 
may refuse to permit them. It is a bureaucratic decision by the FAA.
  Congress needs to weigh in on the issue of drones and set down 
constitutional guidelines. People need to know the rules. Law 
enforcement needs to know the rules, and private citizens need to know 
the rules about their use of drones. And basically, the Fourth 
Amendment ought to apply to the use of a drone except with the exigent 
circumstances that already apply to the Fourth Amendment--high-speed 
chases, disasters, fires, et cetera--but we need some guidelines on the 
issue of drones.
  Congress has the responsibility to protect the Fourth Amendment of 
the surveillance of Americans by either law enforcement or by private 
citizens and develop a standard for both law enforcement and for 
private citizens to know what the standard is. Yes, there are reasons 
why we should use them, and the law should allow those, but Congress 
needs to make the decision, not the FAA.
  I have a local sheriff, or the sheriff in Texas where I am from. He 
generally says he doesn't want to use drones because he doesn't know 
what the courts are going to decide down the road as to whether or not 
that use of a drone was a lawful or unlawful violation of the Fourth 
Amendment. So rather than wait for the courts to decide if this 
specific use is or is not a violation of the Fourth Amendment, Congress 
needs to come up with guidelines about the design and the protection of 
the Fourth Amendment that drones can only be used in certain 
circumstances; otherwise, they are not allowed to be used because they 
violate the Fourth Amendment of the United States.
  So those are three issues that have the right of privacy that are 
being, I think, chilled today because there is more and more government 
intrusion into all of those areas: into the massive data of phone 
information, information that is put on your iPhone, for example, that 
is being seized, can be seized without knowledge, without warrant; the 
massive amount of emails that can be seized--we really don't know how 
much is being seized because over 6 months your personal email is not 
protected by law; government agencies, not just law enforcement, can 
seize that--and then the skies will have 30,000 of those drones.
  There needs to be some regulations within protection of the Fourth 
Amendment, and we need to work with industry and government to outline 
what those rules ought to be to protect the Fourth Amendment, protect 
the right of privacy of individuals to be secure in their homes, in 
their papers, and their effects from government intervention and 
government intrusion. Congress should set the standard for what a 
reasonable expectation of privacy is, especially in those areas that I 
mentioned and the one regarding drones as well.
  So I hope that we see some movement in this legislation. Once again, 
Zoe Lofgren and I have introduced legislation, as well as others, to 
protect the right of individuals to be free from searches of their 
emails after 6 months without a search warrant. We have that 
legislation pending as well. Hopefully, we can rein in what I call the 
stalking government about stalking American citizens.
  America is not about keeping up and following every citizen in the 
United States by government. That is what other countries do. That is 
what countries like the Soviet Union used to do. That is not what 
America should be doing, and Congress needs to weigh in on this to 
protect individuals' right of privacy under the Fourth Amendment, which 
was the spark, according to John Adams, to the American Revolution, 
that concept of the Fourth Amendment being violated.
  And that is just the way it is.
  I yield back the balance of my time.

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