In 2019, agents of the federal and state governments persuaded judges to issue 99% of all requested intercepts. An intercept is any type of government surveillance — telephone, text message, email, even in-person.
These are intercepts that theoretically are based on probable cause of crime, as is required by the Fourth Amendment to the Constitution.
The 2019 numbers — which the government released as we were all watching the end of the presidential election campaign — are staggering. The feds, and local and state police in America engaged in 27,431,687 intercepts on 777,840 people.
They arrested 17,101 people from among those intercepted and obtained convictions on the basis of evidence obtained via the intercepts on 5,304. That is a conviction rate of 4% of all people spied upon by law enforcement in the United States.
Here is the backstory.
Readers of this column are familiar with the use by federal agents of the Foreign Intelligence Surveillance Act to obtain intercepts using a standard of proof considerably lesser than probable cause of crime.
That came about because Congress basically has no respect for the Constitution and authorized the FISA Court to issue intercept warrants if federal agents can identify an American or a foreign person in America who has spoken to a foreign person in another country.
Call your cousin in Florence or a bookseller in Edinburgh or an art dealer in Brussels, and under FISA, the feds can get a warrant from the FISA Court to monitor your future calls and texts and emails.
This FISA system is profoundly unconstitutional; the Fourth Amendment expressly requires that the government — state and federal — can only lawfully engage in searches and seizures pursuant to warrants issued by a judge based upon a showing under oath of probable cause of crime.
The Supreme Court has ruled consistently that intercepts and surveillances constitute searches and seizures. The government searches a database of emails, texts or recorded phone calls and seizes the data it wants.
Thus, when the feds have targeted someone for prosecution and lack probable cause of crime about that person, they resort to FISA. This is not only unlawful and unconstitutional, but also it is corrupting, as it permits criminal investigators to cut constitutional corners by obtaining evidence of crimes outside the scope of the Fourth Amendment. The use of the Fourth Amendment is the only lawful means of engaging in surveillance sufficient to introduce the fruits of the surveillance at a criminal trial.
If the feds happen upon evidence of a crime from their FISA-authorized intercepts, they then need to engage in deceptive acts of parallel construction. That connotes the false creation of an ostensibly lawful intercept in order to claim that they obtained lawfully what they already have obtained unlawfully.