The Government Compels Silence – Again

The government knows how to evade an uncomfortable constitutional provision or High Court opinion, writes Andrew P. Napolitano regarding a case involving Donald Trump, Jack Smith and Elon Musk.

Elon Musk at a conference in March. (Wcamp9, Wikimedia Commons, CC BY 4.0)

By Andrew P. Napolitano

When Congress enacted the Stored Communications Act of 1986 (SCA), it claimed the statute would guarantee the privacy of digital data that service providers were retaining in storage. The act prohibited the providers from sharing the stored data, and it prohibited unauthorized access to the data, commonly called computer hacking — except, of course, if the recipients or the hackers were working for the federal government.

Just as it did with the Patriot Act of 2001 — which permits one federal agent to authorize another to conduct a search of stored data, without a judicially issued search warrant — the SCA permits judges to issue “orders” for searches without meeting the probable cause standard required by the Fourth Amendment.

Just like the Patriot Act — which in its original form prohibited the recipient of agent-issued search warrants, called National Security Letters (NSLs), from telling any persons of their existence — the SCA requires judges who issue orders for a search, upon the request of the government, to bar the custodian of the data who has received the order from informing the person whose data is sought.

What if the person whose data is sought has a claim of privacy on the data? What if the owner and creator of the data relied on the Fourth Amendment to keep the government’s hands off of it? What if that person was the president of the United States at the time he created the data? What if he has a claim of executive privilege on it? What if all persons have a privacy claim on all stored data and have a right to resist the government’s efforts to seek it?

Former President Donal Trump speaking to supporters at the “Save America” rally in Washington, Jan. 6, 2021. (Voice of America, Wikimedia Commons)

Here is the backstory.

Is a judicial order for data under the SCA a search warrant under the Fourth Amendment? It is, after all, a judicial order directing and authorizing an official of the executive branch to surveil and seize private property, and it does specifically describe the place to be searched or the thing to be seized. But, because it is not based on probable cause of crime as the Fourth Amendment requires, the short answer is: No.

In United States v. Carpenter (2018), the Supreme Court ruled that orders for data based on governmental need, rather than probable cause of crime, are constitutionally defective and the data cannot be used at trial.

But the government, which knows how to evade an uncomfortable constitutional provision or Supreme Court opinion, has continued to use the SCA as a means around them. This became apparent this week in a case before the Supreme Court involving former President Donald Trump, Jack Smith and Elon Musk.

Jack Smith on June 9, 2023, during a statement about the indictment of Trump. (U.S. DoJ, Wikimedia Commons, Public domain)

Two years ago, Smith, the special counsel prosecuting Trump for alleged Jan. 6 crimes, obtained an order from a federal judge in Washington, D.C., directing X — formerly known as Twitter — to surrender copies of communications sent and received by Trump in January 2021, and prohibiting X from informing Trump.

This was not a search warrant, as it was not based on probable cause of crime. It was an SCA order based on governmental need.

The SCA is unconstitutional on its face. This is so because it directly defies the Fourth Amendment, which guarantees privacy by requiring a showing under oath of probable cause of crime as the absolute precondition of all government searches and seizures. Nevertheless, X complied with the order, but filed a secret application with the judge who issued it seeking to vacate the order for silence.

Government orders for silence have a long and troubled history. The same First Amendment that prohibits Congress from infringing upon the freedom of speech also prohibits the government from compelling speech. If Congress cannot infringe upon or compel speech, how can it compel silence? It cannot constitutionally do so.

In 2005, in Connecticut, librarians wound up ensnared by a National Security Letter (NSL). The Patriot Act prohibited the recipient of an NSL from telling anyone — even a lawyer — of the receipt of it.  When the librarians sued for the right to discuss the receipt of the NSL, the feds charged them with criminal violations of the Patriot Act by discussing the receipt of the NSL with their lawyers.

After a federal district court granted and a federal appellate court upheld the relief the librarians sought, and the criminal case against them was dismissed, Congress amended the Patriot Act to permit recipients of NSLs to discuss them with counsel. By then, five different federal judges had declared the silence provisions of the Patriot Act unconstitutional.

That should have been the end of commands for silence, but it wasn’t.

When lawyers for X argued that the SCA infringed upon Musk’s freedom of speech to tell Trump what the feds were up to, a federal district court rejected that argument and a federal appellate court upheld the rejection. X appealed to the Supreme Court, and the court — without an opinion or a dissent — declined to hear X’s appeal.

Here we go again. Doesn’t the Constitution mean what it says? Of what value are constitutional guarantees if those in whose hands we repose them for safekeeping secretly and repeatedly decline to do so? How does this end?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

Published by permission of the author.

COPYRIGHT 2024 ANDREW P. NAPOLITANO 

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21 comments for “The Government Compels Silence – Again

  1. October 13, 2024 at 07:39

    Thank You Judge

  2. Ian Perkins
    October 11, 2024 at 15:26

    This is no doubt fascinating to US citizens, but for those of us who aren’t, it’s all rather parochial and academic. US government agencies routinely hoover up vast amounts of data on foreigners, as do US corporations like Microsoft and Facebook. Do the US Constitution or its various amendments have anything to say about this? I think most US interpretations say not, despite such supposedly high-falutin phrases as ‘all men are created equal’.

  3. W. R. Knight
    October 11, 2024 at 13:59

    Today’s courts will uphold the Constitution only if it’s convenient. When it’s inconvenient, they’ll look the other way.

  4. Realist
    October 11, 2024 at 12:35

    The most “American” of all the denizens involved in this Gemisch of legal actions and treason was the foreign-born Elon Musk. The rest of ’em deserve a term in Leavenworth federal prison for their attacks on the constitution–most notably the Bill of Rights. Musk may not be the most articulate defender of our freedoms, but he is the most sensible of the lot in question. “X marks the spot!”

    • robert e williamson jr
      October 11, 2024 at 15:44

      Realist, You are entitled to your opinion, no doubt!

      However, I have no clue how you came to your conclusions about Elon Musk. I submit to you my opinion.

      I dismiss you arguments for Elon on their face. It is my belief Elon has some serious issues that prevent him from ever being the ‘most American’ anything. I fail to see Elon desires to defend anything or anyone other than himself. But last and most important the differences with respect Elon you describe here are differences with little or no distinction.

      I figure sooner or later, this is speculation on my part here, similar to what you espouse above, Mr. Musk will fail your vision and engage in his own attacks on the Constitution.

      Lois Gagnon makes a very valid point here.

      Guillermo Calvo Mahe’ make a very valid point that can be embellished on here.

      Namely the lame assed Patriot Act, something that was supposed to be temporary but which has now become the battle cry of denizens, other false prophets and outright liars who misrepresent their bad intentions by using complete government secrecy as a tool to do their dirty work. The same surveillance and secret court at issue here.

      • Realist
        October 12, 2024 at 10:59

        I never said that Musk is always right. He created the electric car industry, which will prove to be a major dead end, more detrimental than beneficial to our future. What I said was that “Musk may not be the most articulate defender of our freedoms, but he is the most sensible of the lot in question.” Being not nearly as glib as his detractors I believe he goes to great pains (sometimes falling short, as do we all) to be accurate, truthful and helpful to humanity’s future–but I’d never say I always believe everything he says–just what I already know to be truth or what makes the most sense based on first principles of science or the “natural law” of philosophers, clerics and Judge Nap. I think Musk’s purchase of Twitter (now X) was a genuine attempt to prevent the further encroachment against our freedoms under the Bill of Rights. Of course, he knew that, in so doing, he was protecting his own rights and not just yours. He sure did not understand the can of worms he was opening, as the initial public response by those representing the status quo probably harmed his reputation more than helping it–as they intended. Perhaps Musk thought the aftermath of his move would be high school debate club rather than moving the new cold war fully within America’s borders. I think its stupid to impute the worst of motives to everything the guy does. Once any issue gets into the courts lawyers can make anything you like more tenuous than Schoedinger’s cat itself. We even execute men we KNOW are innocent because they were convicted under “due process” even though later tons of new evidence proved these people innocent and the prosecution itself appealed the verdict and/or the punishment.

        • robert e williamson jr
          October 13, 2024 at 17:16

          I stand by what wrote.

          Your ability to explain yourself same as with Elon’s propensity to grasp some highly technical concepts is worthy of respect. I have to admit that much here.

          Still I seriously question his judgement at times. My experience in life taught me many relatively young individuals who accumulate massive amounts of wealth many times commit grievous errors.

          His protections of my freedoms under the Bill Of Rights doesn’t apply to me in this case I simply refuse to use the platform .

          I actually appreciate you response.

          I would remind you I have left comments here that criticize your comments I also leave comments agreeing with you. I’m sure we would never agree on everything, the world and life simply do not work that way. I’m comfortable with that.

          While you state you “I think it’s stupid to impute the worst of motives to everything the guy does.” I’m glad you replied. Without being somewhat abrasive I doubt I would have gotten any response. I will apologize for offending your sensibilities. Valid points same as good ideas live of their volition. I’m 76 and still learning.

          Thanks.

        • JonnyJames
          October 13, 2024 at 18:01

          Regardless, Musk is an oligarch, a parasite, a liar and hypocrite, just like every other oligarch. He’s made BILLIONS in govt contracts, subsidies, tax-breaks etc. Like Medieval peasants, we are supposed to identify with the neo-aristocracy. Dude doesn’t give a fk about anybody but himself. His financial status is an in-your-face example of that. You don’t become the richest asshole in the world by being a nice guy respecting freedom of speech.

          F Musk, what about genuine advocates of free speech like Ed Snowden, Julian Assange, even Mumia Abu Jamal ffs!

    • Joy
      October 11, 2024 at 19:06

      And yet, X has permanently banned reporter Ken Klippenstein for his reporting on the Vance “dossier,” based on its presumably negative contents to the candidates Musk is supporting. Sounds like another case of “Free Speech,” as long as it says what I want. These platforms are gigantic, and have inordinate power to suppress American freedoms. I can hope the few remaining free speech platforms don’t succumb, or that a truly independent new platform, run by the people, and for the people will arise.

  5. Lois Gagnon
    October 11, 2024 at 10:55

    Don’t all these employees of government entities take an oath to protect and defend the constitution of the United States from enemies both foreign and domestic? They are in clear violation of their oath of office. They should all be fired.

  6. October 11, 2024 at 10:17

    The Clinton-Bush-Obama-Biden-Harris legacy, loss of privacy, liberty and fundamental rights which so many Americans have purportedly given their lives to protect

    • Realist
      October 11, 2024 at 12:46

      You just itemized the American version of the Avignon Captivity (reign of successive “anti-popes” during the 14th and 15th centuries). The USA needs to get back on track and adhere to the constitution it was conceived under before the succession of de-facto soft coups spawned by the emergence of the “imperial presidency” this country has been stuck with ever since.

  7. Charles E. Carroll
    October 11, 2024 at 10:08

    It ends in hand cuffs.

  8. October 11, 2024 at 10:08

    It is not just the government that can gain access to our private digital data, it is the corporations that hold the information “in the cloud”. We have no rights when it comes to the corporations because we have to click on the “I accept the corporate policies” before we can use the data service. So this is a problem that is much bigger than the government vs. private citizens. This is about how modern capitalism works in ways that violate everyone’s privacy.

    • robert e williamson jr
      October 11, 2024 at 17:37

      I Agree!

  9. susan
    October 11, 2024 at 08:20

    Thank you Judge Napolitano – it is so refreshing to hear, from a legal perspective, what is actually happening to our Constitutional Rights as they are being stolen little by little by neoliberals and capitalists alike. Unfortunately, democracy is dead – if it ever existed…

  10. Burt
    October 11, 2024 at 06:53

    Sorry judge, but this document, this constitution, is the mechanism by which the oligarchs of the 18th century solidified the US as an oligarchy. When one hears about the vision of the founders of the US, one has to remember that the rules and protections of the constitution applied to white, male property owners. Washington, Jefferson, Madison et al were among the wealthiest men in the nation, with vast fields of tobacco that were worked by slaves laboring under the lash of the whip. Many of these founders, venerated by people like Mr. Napolitano, were rapists producing mixed race children that were raised as slaves or sold to other slave owners. If the author of this article reads these comments may I suggest a song that he can fit on a playlist. It’s called “I Wanna Piss On Your Grave” by the Coup.

    • Consortiumnews.com
      October 11, 2024 at 11:16

      But that constitution has been changed since then to expand the franchise to all adult citizens and you are conveniently ignoring the Bill of Rights, which is what the judge is writing about.

    • hetro
      October 11, 2024 at 12:58

      The Judge isn’t talking about defects in the lives of the original oligarchs but the only document we have as a possible prescription for government by the people instead of feudalism. The comment is both disrespectful and irrelevant.

      • robert e williamson jr
        October 11, 2024 at 19:14

        Again, I agree with hetro let us remember how many take an oath to uphold the the constitution.

        All Federal Officials , including the members of the SCOTUS are required to take the oath to uphold the U.S. Constitution under Article VI, which includes a specific “Judicial Oath” Members of the SCOTUS are required to also take.

        A very interesting development occurred in 1990 while G. H. W. Bush was president. While trying to find the verbatim language of the Judicial Oath I was directed to

        hXXps://www.supremecourt.gov/about/oath/oathsofoffice.aspx

        I feel anyone interested in the constitution, the SCOTUS might be interested to learn the Oath of Justice which was observed from 1789 – 1990 was changed as the result of the the Dec 1990 Judicial Improvements Act of 1990.

        I would advise everyone to pursue this issue. I am no legal scholar for sure however this topic seems of special interest to me and others might feel so inclined. The Civil Justice Reform Act, the CJRA was also enacted Dec 1990. Reference is made to this Act as being the last Major Expansion of the Federal Judiciary. If one pursues the trail of this Act to hXXps://en.wikiperdia.org/wiki/Civil_Justice_Reform_Act. one may understand my curiosity about this topic.

        I cannot, so far find any information on whether or not the case was considered a Civil case by the SCOTUS.

        Further more in one goes to hXXps://www.britannica.com/event/Citizens-United-v-Federal-Election-Commission,while the case is discussed at length i still find no indication the case was considered “Civil by the SCOTUS

        I cannot, so far find any information on whether or not the case was considered a Civil case by SCOTUS. This reveal my ignorance of the Federal laws. I don’t like to assume anything.

        I have some issue with the ruling I see as the SCOTUS as taking undue liberty with the English language saying Money is Speech which it clearly is not.

        Thanks CN

        • robert e williamson jr
          October 13, 2024 at 17:27

          Any lawyers out there that can enlighten me?

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