Relying on the Constitutional Agenda

-- By LeylaHadi - 04 Mar 2015

Parts Four and One

While the First Amendment prohibits the government from creating any law that hinders our freedom to say anything we want, Snowden made clear that we are not protected from having that speech obtained against our will and potentially used against us. Physical searches without our consent or a warrant in a particular space have been the predominant focus of Fourth Amendment search cases. Now, our speech and possessions have transformed into living in virtual space, and our speech in the expected private domain easily accessible to the government without physical intrusion or action. Fourth Amendment protection needs to transform along with it. Together, based on the overriding principles of the Constitution, these Amendments necessitate an end to the NSA data-collection program.

Only the Physical

The Fourth Amendment speaks of places. Searching/seizing speech was impossible in the eighteenth century without obtaining somebody's physical items. It protected one's speech by protecting citizens' "papers" from warrantless search and seizure, where speech existed. Technology expanded the means by which government can search and seize speech, first through circuits, now data-packets. 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 produce. His records were physically on the company's property, with no invasion or intrusion on to his "constitutionally protected area".

The government claims there is no reasonable expectation of privacy in what is readily exposed to today's phone and internet companies. However, as Judge Lynch wrote in ACLU v. Clapper, "in today’s technologically based world, it is virtually impossible for an ordinary citizen to avoid creating metadata about himself on a regular basis simply by conducting his ordinary affairs." A reasonable expectation of privacy should extend to our virtual life, with elements of our virtual life viewed as either speech or property. Alongside 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 should apply to judicial transparency and due process involved in NSA targeted programs. In the criminal justice system, a suspect receives the warrant with notice that his/her rights are now limited. The elusive FISA court grants every request without suspects even receiving notice. While notice would defeat the purpose of spying, citizens are protected from this illegal government spying through search and seizure and should have notice and a right to defend themselves.

The route to utilizing the Fourth Amendment against the NSA surveillance program is showing that technology requires reformulating the view of searches/seizures as physical intrusions. We function virtually and so virtual intrusions need to be characterized as warrantless searches/seizures. Courts should utilize the Constitution 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.

The Companies as Middlemen

The Smith dissent expressed the right view regarding information-gathering from third-party middlemen: simply because citizens know their information might be recorded, it doesn't mean they expect government to access it without consent or a warrant. The net should not function like a foreign locality - our virtual lives should be our possession, not theirs, in the way landlords don't have rights to tenants' possessions simply because landlords own the property and provide a place for the possessions.

The amount of interactions that occur via the internet and cellphones was unimaginable in 1979 when Smith was decided; people's lives didn't function almost entirely through communication methods provided by companies. If citizens object to companies' recording and keeping their packets, they should stop using those companies, and educating people about these practices is a start. But if they choose to continue using the services they now depend on, why should they lose their Fourth and First Amendment protections? Courts need to reframe the understanding of search and seizure in conjunction with what have become our "effects" instead of undermining the Amendments' purposes through an antiquated view of society and communication.

The whole point of the Fourth 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. Reasonable expectations of privacy need to exist in communications that were intended for privacy even though the information was voluntarily given to one or more companies because that is how people communicate.

The Second Circuit's Focus on the Patriot Act

While the Clapper found the Patriot Act did not authorize the NSA program, the Second Circuit chose not to reach its constitutionality. Instead of focusing on the Act, in whose place other Acts can emerge to allow the same mass surveillance scheme, the judiciary should undermine any future attempts by finding their unconstitutionality. The founding principles of this country should be used to fight the darkness. While Congress has not made a law that abridges freedom, we are living in a world where government has complete 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 inquire, to be. Knowing the government has access to your life inherently abridges that freedom. The First Amendment is failing to let Americans speak freely, without appropriation of their speech by the government 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. These overarching principles should be actively utilized to continue that existence.