Will Orlando Shooting Derail Thomas Massie’s War on Warrantless Data Collection?

Thomas MassieThe House of Representatives is set to vote later today on a provision that would outlaw the federal government's routine collection of American citizens' electronic information: emails, text messages, photos, etc. Supporters say the measure is popular with the public, and note that it was approved by the House twice previously (the Senate eventually spiked it).

But this time, the vote is probably going to be more contentious, coming in the wake of the terrorist attack in Orlando, where Omar Mateen—a U.S. citizen with parents who emigrated from the Middle East—murdered more than 50 people at a gay nightclub in the name of radical Islam.

The government is allowed to collect information from foreign persons' electronic communications, but isn't supposed to subject American citizens to the same level of warrantless surveillance. The Massie-Lofgren Amendment, sponsored by Rep. Thomas Massie (R-Kentucky) and Rep. Zoe Lofgren (D-California) spells this out explicitly: federal authorities must obtain a warrant in order to collect data on American citizens.

Massie told Reason that intelligence officials have admitted to engaging in this kind of data collection, even though the Constitution already prohibits it.

"The amendment is redundant in the context of the Constitution, but it's not redundant in the context of current practice," said Massie.

Massie notes that his amendment doesn't stop federal officials from investigating Americans—they just need to get warrants in order to do so. This isn't particularly difficult, and only requires probable cause, says Massie.

"You can't waive the Fourth Amendment just because it's not convenient at any point in time," he said.

The House approved Massie's amendment last year, and the year before. Both times, it died during negotiations with the Senate.

But that was then. This time around, even the House vote looks dicey. That's because plenty of politicians in both parties seem less deferential to the Constitution, due process, and privacy at a time of heightened sensitivity to terrorism. Republicans lose all interest in preventing warrantless data collection, and Democrats become obsessed with limiting gun rights.

Rep. Devin Nunes, a Republican and chairman of the House Intelligence committee, gave a typical response when asked about Massie's amendment.

"At a time when jihadists are targeting Americans for mass murder, limiting the intelligence community's access to a crucial anti-terror tool is the last thing we can afford to do," he said in a statement, according to Bloomberg News.

It's a reality that Massie—a principled, consistent libertarian—finds frustrating.

"The irony of my colleagues using the Orlando tragedy to erode the Fourth Amendment is they are castigating the Democrats for using the tragedy to erode the Second Amendment," he said.

Watch Massie speak at Reason Weekend, below.