Relying on the Constitutional Agenda

-- By LeylaHadi - 04 Mar 2015

(Next draft -- include analysis of Lynch 2nd Cir. decision)

Fourth Amendment Protection

The prevalent and archetypical view that spying is done in specific places on specific people who have created suspicion based on their activities is now false. The idea persists that we can only be physically under surveillance. Physical searches without our consent or a warrant in a particular space have been the predominant focus of Fourth Amendment search cases, with reliance on the reasonable expectation of privacy in that space. We have reasonably expected privacy within the home, not when we are in public space. Inspection of physical aspects of the home through thermal imagining has been found illegal, and warrantless tapping of circuits in our home has been found illegal too. Yet now, with our speech in the expected private domain accessible to the government without any physical intrusion or action, the Fourth Amendment is not living up to its framers' hopes and intention. While the government may not create any law that hinders upon the freedom to say whatever we will, it does not protect us fervently from having that speech obtained against our will and potentially used against us.

But although that may feel like what we now need, that may not have been what those who understood the Fourth Amendment written at the end of the eighteenth century in their own immediate legal terms thought they needed then. In which case they amendment hasn't failed. We have simply changed.

When the issue focused entirely on national security and the need to monitor foreign communication, the argument that Bush's surveillance directive was a necessary program could stand firm on the idea that Americans communicating with Americans weren't targeted. Only would be monitored to protect the "freedom" that this country extols. Because of Snowden's revelations, the public learnt that the speech of US citizens, not just that of suspicious outsiders to Constitutional protection, is searched and seized daily without warrants. So why hasn't the Fourth Amendment been triggered? Do we not have a reasonably expectation of privacy in our virtual life, or are we just naive and blindly convinced that the values of the Constitution are still upheld? A reasonable expectation of privacy should extend to our virtual life, with elements of our virtual life viewed as either speech or property. In tandem with the Constitutional values of freedom from a totalitarian government found in the First Amendment, and due process in the Fifth and Fourteenth Amendments, the concern of privacy from government intrusion must include protection on the net. This concept that should apply to judicial transparency and due process too. At least under the criminal justice system, a suspect receives the warrant and has notice that his/her rights are now limited. The elusive FISA court grants every NSA request without the suspect even receiving notice. Of course, notice would defeat the purpose of spying. But citizens are protected from this illegal government spying through search and seizure and thus should have notice and a right to defend themselves. Theoretically.

Or perhaps the problem isn't whether they have a warrant, which they can get from the FISA court, apparently, at need. Maybe the Fourth Amendment does not have to act alone here, as one object. Perhaps the storing and searching of the patterns of all our speech abridges our freedoms, because it abets totalitarian procedures, and the First Congress made a Bill of Rights which either stands firm against totalitarian procedures by the Federal Government, or it is not achieving its intention at a different, more general, equally compelling level.

Only the Physical

The Fourth Amendment speaks of places. Searching speech was impossible in the eighteenth century without obtaining somebody's physical items in violation of the Amendment. It protected one's speech from being illegally examined and obtained by protecting a citizen's "papers" from warrantless search and seizure, where speech existed. Technology expanded the means by which the government can search and seize speech, first through circuits, now packets of data. The Katz Court found warrantless wiretapping illegal, which expanded the protection to physical intrusion into a person's circuits. However, Smith v. Maryland resulted in the finding that a suspect had no reasonable expectation of privacy in his metadata, the records the police asked his phone company to procure for them. The register that collected his records was physically on the company's property, and no invasion or intrusion on to his "constitutionally protected area" occurred.

The route to utilizing the Fourth Amendment against the NSA surveillance program is showing that technology requires reformulating the view of searches as physical intrusions. We function virtually and so virtual intrusions need to be characterized as warrantless searches. The Fourth Amendment needs to be construed expansively to stay true to its original premise to find: the government should not be in our private lives, our private lives are on the net, and unless the government has a reason to subpoena our information, it can't.

But if the FISA court gives them a warrant to do what they are doing, isn't the question whether the search is "reasonable"? And supposing it is not, what remedy does the Fourth Amendment itself propose. Some of us think that the exclusionary rule is directly required by the amendment itself, but by no means all lawyers and judges agree. And no one supposes that any of the material gained by the intelligence services is admissible, or even usable to lead to other evidence, in US prosecutions. This is the division between spooks and cops in action. (The "Patriot Act" immensely damages this division by allowing for the first time evidence gained from foreign intelligence services to be admitted in US courts, but that's another very distressing story.)

Why does the Fourth Amendment, ex propria vigore have to address this problem? Why are we compelled to find our instruments packed in separate boxes, and to use them only separately, one at a time?

The Companies as Middlemen

The Smith majority found that the defendant did not have a reasonable expectation to privacy because he voluntarily conveyed the information to the company and knew they could record the information. The view needs to change to agree with the dissent: just because you know your information might be recorded, it doesn't mean you expect the government to access it without your consent or a warrant.

Why does that need to change? How can we so casually abandon the government's right to get in its courts orders to compel the production of material or information in citizens' lawful possession? To say that A—who was involved in the production of information now in the hands of B—has some right to prevent the State from seeking and getting a court order requiring B to produce what it lawfully has, solely because it is about A doesn't seem to have anything to do with the Fourth Amendment at all. You have said that because we keep more of our information abroad our rights to be secure in our houses must follow us there, wherever there is and whoever's premises they are. But people have kept their goods in other peoples' warehouses for the longest time, and no one has ever suggested that we have a Fourth Amendment right to prevent a warehouse from being searched if our goods are deposited there. Your "must" seems to imply that the large existing corpus of understanding is obliged to move over immediately because people have adopted unwise habits. It would be simpler, I have suggested, to take the law seriously, and store our papers and effects at home. I know you want to believe that this is impracticable, and that the constitutionally improbable is superior. You should so believe and so argue, but not by leaving the other view out of the picture altogether.

The amount of interactions that occur via the internet and cellphones was unimaginable in 1979; people's lives didn't function almost entirely through communication means provided by companies. If people are unhappy with companies' recording and keeping their packets, they should stop using those companies. But if they choose to continue - why should they lose their Fourth Amendment rights?

Well, perhaps those rights aren't the only ones that need to be considered. Perhaps like all other legal rules, these have boundaries, and in order to benefit from them one needs to take those boundaries seriously enough to shape one's conduct in view of the breadth of one's actual rights.

Courts need to reframe their understanding of search and seizure in conjunction with what have now become our "effects" instead of undermining the Amendment's purpose through an antiquated view of society and communication.

All right, fair enough. But is the argument that they should do so because things are different now the best argument that can be advanced in support of the conclusion?

The whole point of the Amendment is to protect its citizens from exactly what is happening now: mass access to unauthorized data. Using companies as middlemen to invade privacy is a farce that courts need to strike down. A reasonable expectation of privacy needs to exist in communications that were intended to be private even though the information was voluntarily given to one or more companies because that is how people now communicate.

Two Rights To A Wrong

The Fourth Amendment should be used to fight the darkness. Coupled with the First Amendment, a beacon of enigmatic freedom, the two can fight this age of government surveillance. Basing arguments against information and speech regulations on the First Amendment necessitates a block to the government's access to that information and speech. While Congress has not made a law that abridges freedom, we are living in a world where the federal government has access to our virtual lives. If the First Amendment did what it was supposed to in a binary system of total freedom versus anything else, there would be total freedom - to say, to know, to inquire, to be. Knowing the government has access to your life inherently abridges that freedom. The First Amendment has failed to let Americans speak freely, without appropriation of their speech by the government, even after Snowden's revelations, because of piecemeal interpretation of its purpose. The Fourth and First Amendments were required for this new principled and free nation to succeed in its existence without totalitarian realities. Why aren't they doing their jobs?