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.
11 responses so far ↓
1 jake // Sep 5, 2012 at 8:06 pm
the current state of privacy in the US is such that the “founding fathers”, were they alive, would be overwhelmed with disgust.
all of this is done in the name of “preventing terrorism” or something equally ridiculous. recall that you are more likely to be killed in a furniture moving accident than by terrorism
http://www.theatlantic.com/international/archive/2012/06/americans-are-as-likely-to-be-killed-by-their-own-furniture-as-by-terrorism/258156/
2 3-D // Sep 5, 2012 at 8:29 pm
“Maybe next they can pass a law making it illegal to publicly complain that your First Amendment rights have been violated.”
Free Speech Zones, anyone? They may have passed a law, but it’s been de facto illegal near any gathering of rich powerful people for a while now.
3 3-D // Sep 5, 2012 at 8:30 pm
May *not* have, rather. Oops.
4 William Payne // Sep 5, 2012 at 10:02 pm
This situation brings to mind an ethics-in-computing course that I took as an undergraduate. As I recall, one of the ministrations that we received warned of the ethically corrosive effects of technology:
Primarily due to the increased separation of the actor from the effects of his or her actions, and the resulting difficulty in evaluating those effects;
Secondarily due to the increased capacity for causing harm afforded to us by modern technology.
It seems that here we have a set of public servants that, with the best of intentions, avail themselves of the capabilities that modern technology puts so temptingly within reach; capabilities that, in many circumstances, private companies are able to freely use.
The potential for abuse is clear, but the nature of the required safeguards are not.
An integrated, “systems”, approach to government, law and technology might provide insights into how effective safeguards against abuse (both from the public and the private sector) might be designed and implemented.
5 the left needs to transcend lesser evilism « leaves in the forest // Sep 6, 2012 at 1:12 am
[…] to be codified into law, and his continued support for the FISA Amendments Act of 2008, which violates the very spirit of the Fourth Amendment. In this situation, Obama is clearly the ‘lesser evil’ from where I sit on the […]
6 Rob // Sep 6, 2012 at 10:58 am
We didn’t like when the British soldier was stationed inside our homes (as an act of duty on our party) but are we ok to have the same soldier stationed ‘outside’ our homes… just in case some terrorist happens to do something right next to our homes?
Has our excuses to increase security at the cost of liberty come to that? We need government security at our doorsteps ‘just in case’ of terrorists?
7 DannyD // Sep 21, 2012 at 12:00 am
You go Julian!
I’ve been reading you for about two years now, and have loved all of it.
Working through these last couple of posts, I realize that we HAVE crossed the boundary where piracy of IP and/or embarrassing governmental materials has been grounds for making “general warrants” acceptable, see Kim Dot Com and Julian Asange. Kim’s case involves prosecutorial misconduct on the government’s part. Flying the hard-drives from his home security system to Washington without jurisdiction, and in violation of New Zealand’s court system certainly qualifies. And with regards to Julian Asange, any known associate of WikiLeaks and/or Asange is subject to invasive digital surveillance, coupled with search and seizure of electronic devices whenever coming or going from the US. There’s more behind both of these stories too.
Another interesting twisting of the 4th amendment is the Twitter case in NY. The government’s position here is that information that they cannot get without specific assistance from Twitter (i.e. private account information, that the defendant has reasonable expectation NOT to be public, because it’s not a public Tweet) is somehow “Public” simply because Twitter has it, and the government are entitled to it as “public” information. The very fact that they need Twitter’s assistance to recover this information, in and of itself, demonstrates that it’s NOT “public” information, and that they are NOT entitled to it without a specific warrant.
I can’t conceive of why people are not working together on these issues a little more. The NRA has been the primary mover on any and all 2nd Amendment issues. Why the NRA isn’t also supporting the ACLU and other organizations in defense of the 4th Amendment, I’ll never understand. All of our rights are meant to work together. Perhaps the phrase “A Constitution Divided cannot stand” should start to come into vogue.
DD
8 Nightcap | Thought at the Meridian // Sep 24, 2012 at 11:48 pm
[…] aspects of our vast domestic spying network. Read them all (most recent first) here, here, here, here, here, here, and […]
9 why i refuse to vote for barack obama « leaves in the forest // Sep 27, 2012 at 11:23 pm
[…] waste, fraud, and abuse in government”), who supports the FISA Amendments Act of 2008, which violates the very spirit of the Fourth Amendment, and who signed indefinite detention into law (not to mention vigorously, and successfully, […]
10 Web Design Company // May 17, 2016 at 7:47 am
Take a deep breath and appreciate the chutzpah involved here for a second.
11 Sewa Mobil Purwokerto // Apr 30, 2018 at 11:21 am
hadir