On Thursday, Senator Kirsten Gillibrand, D- N.Y., implied that the only reason you wouldn’t want law enforcement poking around your life is if you were guilty.
Maybe Gillibrand would be OK with the FBI or the local sheriff going through her house, her car, her computer, and her phone just because they felt like it, but I certainly would not. I would guess that most Americans wouldn’t want that either. The fact is, the desire not to suffer an invasion of privacy doesn’t make one guilty.
On CBS, Gillibrand asked, “Who is not asking the FBI to investigate those claims? The White House. Judge Kavanaugh has not asked to have the FBI to review these claims. Is that the reaction of an innocent person? It is not.”
Kirsten Gillibrand: “Who is not asking the FBI to investigate these claims? The White House. Judge Kavanaugh has not asked to have the FBI to review these claims. Is that the reaction of an innocent person? It is not.” (via CBS) pic.twitter.com/0MBuBZFmHX
— Kyle Griffin (@kylegriffin1) September 20, 2018
This is just another version of the classic argument that those who have nothing to hide should not worry about erosions of their civil liberties.
As a Senator and a lawyer, one would think that Gillibrand would be familiar with the Constitution and its basic concepts. But for a little refresher, the Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated.”
The Constitution is pretty clear: You have a right to not be subject to unreasonable search. There mere failure to request an invasive search of oneself when there has been no warrant issued and no probable cause determined cannot be a sign of guilt. In fact, that line of reasoning is what the Fourth Amendment is expressly protecting against.
But perhaps that’s a little too abstract. To understand why this protection exists and what exactly was Gillibrand’s line of reasoning here, let’s take a look at a far less contentious, but much more likely, scenario.
You are stopped by police on your way home from work for a minor traffic violation. You hand over your license and registration, and all is going smoothly. The officer then asks if they can search your car.
Now, you are being asked. You have the right to say no. That’s what the Fourth Amendment means. That right would be meaningless if law enforcement was allowed to take your refusal as a sign of guilt and therefore probable cause.
In the context of a Supreme Court nomination fight that apparently turns Washington into a social media circus, Gillibrand’s comment is in good company. Political ends and heated debates, of course, are an unacceptable reason to throw out fundamental privacy protections.
Gillibrand is wrong. Not wanting an FBI investigation does not make you guilty.
