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The Ideological Assault on the Fourth Amendment

danps's picture

NOTE: Julain Sanchez elaborated on his position and noted: "I wouldn't want people who just read the post to think I'm some kind of apologist for the surveillance state." Please see the comment section of original post (this is a cross post) for his full thoughts.

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Last week the Third Circuit Court of Appeals ruled on the privacy of cell phone records. It seems at best a mixed bag; while the ACLU was largely happy with it, Electronic Frontier Foundation attorney Kevin Bankston noted the decision "made clear that under some circumstances the privacy of such data could be constitutionally protected, and that judges have the discretion to require a warrant to avoid potentially unconstitutional seizures of location data." Qualifications like "under some circumstances," "could be" and "have the discretion" highlight the conditional nature of the ruling. A sympathetic judge can allow these records to be exposed without a warrant, and that is hardly a victory for civil libertarians.

This is consistent with a mostly unbroken trend towards intrusive government and an increasingly claustrophobic sphere of privacy. Consider the wholesale collection of internet traffic in order to engage in warrantless wiretapping, heavy handed search procedures at borders and use of satellite imagery to keep tabs on people's private spaces. (See the description of the Z Backscatter Van at the last link for another potentially troubling development.) Whether through old fashioned encroachment or new technology, the change is unmistakable.

On that first point, pushing back against an overbearing government is a perennial effort; the only thing new about it now is the degree to which the public acquiesces. The post-9/11 effort to keep citizens in a state of blind panic has allowed authorities to make much more ambitious claims, and fighting that - while a very tall order - basically boils down to persuading people that they have more to fear from their own secretive and power mad officials than from the monster under the bed.

On the second, the issues in the digital era were summed up nicely by federal magistrate James Orenstein. In an opinion preceding the 3rd Circuit ruling he wrote of "a growing recognition, at least in some courts, that technology has progressed to the point where a person who wishes to partake in the social, cultural, and political affairs of our society has no realistic choice but to expose to others, if not to the public as a whole, a broad range of conduct and communications that would previously have been deemed unquestionably private."

Julian Sanchez argued Monday for a standard that would exclude virtually all such data from 4th Amendment protection. He focuses on the Amendment's declaration of "the right of the people to be secure...against unreasonable searches and seizures" as a guarantee of security, not privacy. Any level of surveillance is fine as long as people are fully informed about it. If they know the exact degree, even if it is pervasive, it passes Constitutional muster. The 4th Amendment only provides protection against secretive activities, which would create at atmosphere of insecurity in the populace.

He also links to this study, a paper with a goal of "helping to lay the groundwork for an updated, more thorough empirical investigation into perceptions of privacy." The authors do so by "focusing on lay perceptions of what constitutes privacy and thus violations of privacy." The problem is that asking people theoretically what does and does not seem intrusive is much more sanitized than actually being in the moment of such a violation. What might seem fine in an academic setting might be completely objectionable in reality. Moreover, judges who spend their professional lives examining many (sometimes subtly) different examples of search and seizure may arrive at different opinions of what is reasonable. The additional experience and nuance ought to count for something.

The insidious part of such an investigation is that it supports the principle that unless citizens can demonstrate actual harm, government is free to do what it will. This is the polar opposite of the position that government needs to provide a substantiated, compelling reason to intrude in people's lives. It is ultimately a question of what stance the state should have towards the individual. Given all the actual examples of a burgeoning surveillance state, a study like this can hardly be considered in a vacuum.

Sanchez' noble-sounding attempt to "draw more nuanced distinctions between dimensions of privacy" to account for new technologies can only have one effect in practice: Continued erosion of citizens' civil liberties. We should not, as he argues, "move beyond a view of the Fourth Amendment as strictly concerned with an individual privacy right." An authority-friendly court system that rules, even unfavorably, on a precedent-based, holistic and intuitive understanding of the 4th Amendment is better than the alternative: An attempt to break it into many pieces, each with a different set of rules governing it. Because the inevitable next step from there is to set them on a shelf where they will exist, like targets in a carnival game, solely for the purpose of getting picked off.

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