NEAR THE END of the Supreme Court's decision expanding the use of search warrants to seize private papers, Justice Byron R. White pointed out how the effects of the decision can be overcome. "Of course," he wrote, "the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure . . ." What he means is that Congress can pass a law embodying the protections the court has refused to find in the Constitution. Congress should seize the opportunity at once. The dangers of the "possible abuses" are too great to permit delay.
The statement by Deputy Attorney General Benjamin R. Civiletti that the Department of Justice will not authorize federal police to seek warrants for surprise searches of newspaper files is not enough. For newspapers, although they face a special problem involving confidential sources of information, are not the only ones in jeopardy. The decision threatens the privacy of every home and office in the country; yet the Department of Justice, which egged the court on toward the outcome it reached, seems oblivious of those dangers.
The principle the court laid down permits searches of homes and offices for documentary evidences - pictures, letters, notes, diaries - of crimes committed by anyone. As far as we can tell, there is no exemption even for the files of psychiatrists, ministers and lawyers.
The possible abuses are legion. Under this decision, the Nixon administration might have been able to get a warrant to search the files of Daniel Ellsberg's psychiatrist for information about the Pentagon Papers. Under it, your house can be searched if the police have reason to believe someone has mailed you a confession to a crime or a picture of a crime being committed. Such searches, no doubt, might make the solution of particular crimes simpler. But searches are not always productive and rarely are surgical. The search in the case before the court did not produce the picture the police southt; search of a Los Angeles radio station lasted more than eight hours. During the course of searches such as those, the police cannot be prevented from looking at whatever they run across. Who knows what bits of highly personal and private information they might have stumbled across in the files of Mr. Ellsberg's psychiatrist or would find in your home?
Congress can eliminate these and other possible abuses by passing legislation denying to federal judges the authority to issue warrants of this kind. Such legislation should go beyond repudiating the new doctrine that it is permissible to search an innocent person's belongings for evidence that someone else has committed a crime. It should also roll back the reach of search warrants to where it was 15 years ago, when the private papers of an individual could not be searched even for evidence of his own wrong-doing. The idea, now accepted by the court, that no place is immune from government scrutiny except a person's brain is alien to the precepts of the Bill of Rights.
By passing such legislation quickly, Congress would be doing more than just protecting the public against poossible abuses by the federal police. It would be creating a model that could be taken to the state legislatures, each of which would have to adopt it before the public could be safe again. Beyond that, Congress would be sending a message to the Supreme Court that it's whittling away of the Fourth Amendment has gone too far. Such a message might have little immediate effect, given the current membership of the court. But it would lie there, waiting for the court of a later era first to realize that such basic privacy should not be breached and then to restore to the Fourth Amendment the meaning its authors intended it to have.