Lawmakers strike blow for personal constitutional rights

Friday, February 29, 2008

Most of us would be surprised that, as it stands now, the Nebraska State Patrol can find out who you've called on your telephone and who's called you, what types of drugs your doctor has prescribed, and where you spend your money and where you make it -- all without a judge's order.

Well, the patrol can, by following Attorney General Jon Bruning's legal opinion that all that is needed is what is called an administrative subpoena. To make matters worse, after that, authorities don't have to answer to a judge as to what they've found.

The Legislature gave first round approval Thursday to LB952, sponsored by Sen. Steve Lathrop of Omaha, that would correct the current situation, requiring the State Patrol to have court orders to accessing phone, pharmacy, medical, bank and other records when conducting criminal investigations.

A patrol spokeswoman said the patrol, naturally enough, doesn't support limits on its power, and was able to have the bill amended so that, in an emergency, electronic records could be obtained in circumstances not related to a criminal investigation. That might help find some one who is in danger, for example.

On the surface, we might not see the harm in allowing authorities access to our business or medical records; after all, we have nothing to hide.

But the founding fathers knew what they were doing, and saw the need for Fourth Amendment wording specifying that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ..."

They knew the kind of damage that might be done if otherwise innocent information fell into the hands of an overzealous or mistaken prosecution.

Yes, the Nebraska State Patrol and other law enforcement agencies need the tools and power to do their job effectively. But law and order imposed at the expense of constitutional rights is not really law and order at all. It's just another form of crime, commited by society against a group or individual.

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  • I know that over the last couple of decades there has been a gradual tilt by news media, and especially print outlets away from law and order. I'm not quite sure why there is greater suspicion of law enforcement officers who must undergo extensive criminal and character background checks than newspaper reporters who do not. Or why there is greater suspicion of law enforcement officers who work under the watchful eye of internal affairs, the governor's office, the legislature and the ombudsman's office than there is of newspaper reporters who claim they must have total independent unaccountability in order to keep the public informed.

    The news media who all harp on the protection afforded by it must feel no need to read beyond the 1st ammendment. I don't recall the last time I saw a newspaper article that defended your 2nd ammendment right to bear arms and the Gazette is obviously less familiar with the 4th ammendment than they would like you to believe or they wouldn't claim that your constitutional rights are being protected by a proposed piece of legislation. If the Patrol's subpoena power was unconstitutional, a law to usurp it would be unnecessary; anyone could file a violation of civil rights claim with the FBI or directly into a state or federal court.

    Even if the State Patrol's criminal case load did not keep their investigators too busy to randomly check everyone's phone call histories, why would anyone who isn't a crook or a cheater care? However, you can be assured they are too busy obtaining subpoenas to determine who is exchanging child porn and finding out how an unrelated housekeeper drained $200,000 from an elderly, vulnerable adult suffering from dementia to be concerned with someone who is exchanging cell phone calls with his mistress.

    If the Gazette was truly concerned about the potential for subpoena abuse, why not use the freedom of information act to see how the Patrol was using these? Why not check to see how many were quashed or even challenged in criminal court? No, it was just easier and more in line with their political inclination to jump on the bandwagon of a legistlator who made his fortune as a criminal defense attorney.

    I'm saddened by the changes at my hometown paper.

    Dennis Leonard

    -- Posted by dleonard130 on Sun, Mar 23, 2008, at 12:33 PM
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