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Complaisance with Speech Surveillance

-- By LeylaHadi - 04 Mar 2015

Isn't a part of the reason why we would never have believed Snowden and are still in a form of paralysis or active denial about it is because we think we are somehow protected by the Fourth and First amendments?

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, in our time, false. The popular First World fear over the prospect that the government will replace cops with drones, and where the privacy line will end up when drones take over law enforcement, speaks to the persistent idea 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 an emphasis on the reasonable expectation of privacy in that space. We have reasonably expected privacy within the home, but not when we are stationary or transitory in public space. Inspection of physical aspects of the home has been found illegal when made through thermal imaging, and warrantless tapping of the circuits in our home has been found illegal too. Yet, with our speech in the private domain accessible to the government without any physical intrusion or action, the Fourth Amendment has not lived up to its framers' hopes. 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.

Only the Physical

The language of the Fourth Amendment speaks to places. Searching someone's speech was not possible in the eighteenth century without obtaining somebody's physical items in violation of the Fourth Amendment. The Fourth Amendment protected one's speech from being illegally examined and obtained because it protected a citizen's "papers" from warrantless search and seizure, which is where speech existed at the time. Technology has expanded the means by which the government can search and seize speech, first through circuits and now packets of data. The Katz Court

Why doesn't the Fourth Amendment cover the expansion? Why should they be able to search our speech? Is it because we don't have a reasonably expectancy of privacy anymore, or because we are so convinced and dependent on the idea that the values of the Fourth Amendment are still being upheld?

Comparison of Cases about Physical versus Verbal

Extending the Fourth Amendment to Speech

Purpose of the Fourth Amendment as Seen Through Judicial Interpretation

Data Surveillance and Metadata

When the issue was focused entirely on national security and the need to monitor foreign communication, the argument that George W. Bush's surveillance directive was a necessary program could at least stand firm on the idea that Americans communicating with Americans were never going to be targeted. Just suspicious outsiders to Constitutional protection would be monitored to protect the "freedom" that this country extols. After Snowden though, it's clear that this is not the case. His documents...

First Amendment Protection

If we're looking at the First Amendment as a broad, general concept against a totalitarian regime, it should be enough to protect citizens from data surveillance. While technically Congress has not made a law that abridges freedom of speech, which is what the Amendment literally says, we are living in a world in which the federal government has permitted and used data mining. If the First Amendment did what it was supposed to do in a binary system of total freedom versus anything else (whether regulated or prohibited freedom of speech), there would be total freedom - to say, to know, to inquire, to be. Already though, it has failed, for what has it done? It's been unable to let Americans speak freely, without warrantless appropriation of their speech by the government, prior to and after Snowden's revelations, because of piecemeal interpretation of its purpose.

Rationale Behind Exceptions

Enumeration of Rights

Protection

What the fear is - the government surveillance. Why regulations can't work - 1st amendment. But can't the 1st amendment be the basis upon which to challenge the government surveillance? Why isn't it?

Examples - How Else Could it Possibly Look and the Use of Fear

Two Rights Make A Wrong

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