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< | Relying on the Constitution |
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> | Relying on the Constitutional Agenda |
| | -- By LeylaHadi - 04 Mar 2015 |
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< | Isn't a part of the reason why we would never have believed Snowden and are still in active denial is because we think we are protected by the Constitution?
If this is the central idea of the essay, you needn't put it forward as a question: that's too tentative. If it is not the central idea of the essay, then it should not stand alone in this very prominent place at the start of the draft.
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| | Fourth Amendment Protection |
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< | 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 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. |
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> | 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. |
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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.
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< | 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. Just suspicious outsiders to Constitutional protection would be monitored to protect the "freedom" that this country extols. After Snowden, it's clear that this is not the case. Why doesn't the Fourth Amendment cover the expansion? Why should our speech be searchable? Is it because we don't have a reasonably expectation of privacy, or are we just convinced that the values of the Constitution are still upheld? We should have a reasonable expectation of privacy in our virtual life, and privacy from government intrusion must include the net. |
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> | 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. |
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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 |
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< | 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. |
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> | 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. |
| | The Companies as Middlemen |
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< | The Smith majority
You should link here, not just cite casually. When you write for the Web, helping the reader by linking to the material you discuss should be second nature.
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. |
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> | 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. |
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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. |