I’m doing a deep dive into the pre-history of the Fourth Amendment, and am continuously amazed at how perfectly the condemnations of the “general warrants” that incensed the Framers apply to the programmatic authority granted the NSA under the FISA Amendments Act. The legal challenge to that statute is currently hung up on questions of standing, which will shortly be before the Supreme Court in the case of Amnesty v. Clapper. The government’s position is that only those who can prove they’ve actually been wiretapped are entitled to challenge the sweeping and highly discretionary surveillance programs authorized by the law—and since FISA surveillance is permanently secret by default, nobody can have that proof unless the government volunteers it.
Which is funny (if you have a morbid sense of humor), because in one of the three seminal cases historians regard as the inspiration for the Fourth Amendment, Entick v. Carrington, Lord Camden’s ruling cites this exact situation as a key reason why general warrants should be forbidden:
[The general warrant] is executed by messengers with or without a constable (for it can never be pretended, that such is necessary in point of law) in the presence or the absence of the party, as the messenger shall think fit, and without a witness to testify what passes at the time of the transaction; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.
If this injury falls upon an innocent person, he is as destitute of remedy as the guilty: and the whole transaction is so guarded against discovery, that if the officer should be disposed to carry off a bank bill he may do it with impunity, since there is no man capable of proving either the taker or the thing taken.
Because a general warrant, unlike a specific or particularized one, left it to the discretion of the executor who would be searched, it would give rise to an intolerable scenario where many innocent people might be subject to the exposure or seizure of their private papers, with no realistic prospect of remedy for the invasion. The Framers of the Bill of Rights, naturally, found this intolerable too—and thus scholars pretty much universally recognize that the primary purpose of the Fourth Amendment was to prohibit such general warrants.
If the government’s argument is allowed to fly, we have to conclude that the Framers utterly failed in their attempt to remedy the kind of problem Lord Camden identified, because the problem just reappears at a higher level. General warrants, abhorrent for a host of reasons Camden and his contemporaries identified, are formally prohibited. But if you want to enlist the courts to enforce that prohibition, by challenging a law that rather blatantly establishes a system of general warrants, you’ve got to prove you were actually searched under one of those general warrants. When the digital papers are acquired, as the only witnesses are the eavesdroppers, the party injured is left without proof, and the whole transaction is so guarded against discovery that there is no man capable of proving either the interceptor or the thing intercepted.
Take a deep breath and appreciate the chutzpah involved here for a second. The government is effectively saying they’re immune from Fourth Amendment challenges because they have managed to create the exact, explicitly described scenario the Fourth Amendment was written to prevent. Maybe next they can pass a law making it illegal to publicly complain that your First Amendment rights have been violated.