Just FYI, the Restore the Fourth movement in defense of the Fourth Amendment of the Constitution is holding protests all over the US today.
On the Fourth of July, Americans should be celebrating the freedoms enshrined in the US constitution, especially the Bill of Rights. At one time, Americans minded when the government usurped their rights and made over-reaching claims to be able to invade their privacy. No more. Most Americans have become little more than bleating sheep, perfectly happy to be sheared by faceless bureaucrats. They are willing to surrender to the state their most private information, the contemporary electronic records of everywhere they go, who they talk to and for how long, who they email, and even the contents of their communications. With the rise of datamining software, this information can be extremely revealing, and government and contractors with access to it can engage in all sorts of blackmail, insider trading, and corruption. Since the surveillance apparatus is “classified” and top secret, there is no effective oversight to ensure against public harm.
The Founding generation of Americans was particularly exercised by the privacy of their papers, the equivalent of today’s email and electronic records. They put the Fourth Amendment into the Constitution, which says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Note that “papers” are distinguished here from “effects.” That is not an accident, as Donald A. Dripps argued [pdf]:
“The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute un til the Civil War. The one Founding – era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd , which remained the law for another ninety years. Boyd rightly held that “papers” deserve more constitutional protection than “effects.” Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated , and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different.”
The most important 18th-century precedent in English law for our Fourth Amendment is Entick v. Carrington of 1765, in which Lord Halifax, acting for the king, sent agents into the home of John Entick on a fishing expedition for papers and documents that criticized the king. This Revolutionary War site notes:
“During the trial, Entick charged that the entire search and seizure had been unlawfully conducted, and the Court agreed. The Court said that Lord Halifax had no standing to issue the order to search the premises, that probable cause that a crime had been committed had not been demonstrated and that the warrant allowed a general confiscation of anything the officers found, not specifying exactly what they were to look for or could seize. In addition, there were no records kept of what the officers seized.”
In the New World, however, colonial authorities ignored this important case and began issuing what were called “writs of assistance,” a kind of blanket search warrant that allowed the crown’s tax authorities to try to combat smuggling by indiscriminate search and seizure. (We would now call them “National Security Letters.”) Attorney James Otis took the case of 50 merchants who sued the British crown over these overly broad warrantless searches, and his powerful speech condemning these practices was heard by John Adams, who considered it the spark that led to the American Revolution.
George Mason’s Virginia Declaration of Rights of 1776 forbade these writs of assistance. Thomas Jefferson depended heavily on that document when he authored the Declaration of Independence. When he talks about “Life, liberty and the pursuit of happiness,” one of the things he means by liberty is that the government shouldn’t be able to snoop at will through your private letters.
The sentiment against warrantless searches and overly broad writs of assistance was put into the constitution by James Madison, with what became the 4th Amendment.
Over time exceptions were granted to the general principle that the government cannot at will see your papers. One of these exceptions is the “plain view” principle. I.e. if you send a postcard through the mail, you’re not assured of privacy since anyone can see the message you wrote on it.
America’s current national security state, which is a profound betrayal of the Constitution, holds that our email and our documents in the cloud are like postcards and thus can be examined at will by intelligence analysts and law enforcement. I doubt any ordinary Americans thinks that their email correspondence and digital documents are anything at all like a postcard.
Another exception, instituted as recently as 1979, is the stupid “third-party doctrine,” which comes out of a fascist court ruling that since you share your phone records with your telephone company, you can’t expect them to be private from the government. What? What brain-dead jurist thought that up. When I contract as a private citizen with a business for a set of legal transactions, that is none of the government’s business. A law is needed to overturn this ridiculous doctrine.
We need a privacy law in the United States that would settle these issues for electronic papers and reinforce the plain language of the Fourth Amendment, which is by now almost a dead letter.
The argument that we have to give away the 4th amendment because of “terrorism” is equally stupid. (King George III set aside the need for warrants and specific searches on the grounds of fighting “smuggling,” the precedent for our current use of “terrorism” for this purpose). Charles Kurzman points out that there have only been 100 terrorist plots on US soil since 2008 and that the NSA only claims to have disrupted 10 of them through electronic surveillance. There have in those 5 years been 25,000 terrorist attacks worldwide, of which the NSA claims to have foiled 50 through electronic surveillance. So they are not actually so effective that we should be eager just to abrogate a whole amendment to the Constitution over it. And, moreover, there were 70,000 violent fatalities in the United States during this period since 2008, and 20 of those were owing to terrorism.
This is why I say those willing to kick the constitution to the curb over fear of “terrorism” are sheep, not bravehearts. And the government officials who issue thousands of ‘national security letters’ for warrantless searches every year and requisition Verizon business records on millions of customers, are frankly betraying the Constitution.
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