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Thu Jul 4, 2013, 06:00 PM

Juan Cole: How Unreasonable Searches of Private Documents Caused the American Revolution

http://www.juancole.com/2013/07/unreasonable-documents-revolution.html

How Unreasonable Searches of Private Documents Caused the American Revolution

Published on July 4th, 2013
Written by: Juan Cole

- snip -

The Founding generation of Americans was particularly exercised by the privacy of their papers, the equivalent of today’s email and electronic records. They put the Fourth Amendment into the Constitution, which says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Note that “papers” are distinguished here from “effects.” That is not an accident, as Donald A. Dripps argued :

“The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute un til the Civil War. The one Founding – era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd , which remained the law for another ninety years. Boyd rightly held that “papers” deserve more constitutional protection than “effects.” Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated , and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different.”

America’s current national security state, which is a profound betrayal of the Constitution, holds that our email and our documents in the cloud are like postcards and thus can be examined at will by intelligence analysts and law enforcement. I doubt any ordinary Americans thinks that their email correspondence and digital documents are anything at all like a postcard.

Another exception, instituted as recently as 1979, is the stupid “third-party doctrine,” which comes out of a fascist court ruling that since you share your phone records with your telephone company, you can’t expect them to be private from the government. What? What brain-dead jurist thought that up. When I contract as a private citizen with a business for a set of legal transactions, that is none of the government’s business. A law is needed to overturn this ridiculous doctrine.

We need a privacy law in the United States that would settle these issues for electronic papers and reinforce the plain language of the Fourth Amendment, which is by now almost a dead letter.

The argument that we have to give away the 4th amendment because of “terrorism” is equally stupid. (King George III set aside the need for warrants and specific searches on the grounds of fighting “smuggling,” the precedent for our current use of “terrorism” for this purpose). Charles Kurzman points out that there have only been 100 terrorist plots on US soil since 2008 and that the NSA only claims to have disrupted 10 of them through electronic surveillance. There have in those 5 years been 25,000 terrorist attacks worldwide, of which the NSA claims to have foiled 50 through electronic surveillance. So they are not actually so effective that we should be eager just to abrogate a whole amendment to the Constitution over it. And, moreover, there were 70,000 violent fatalities in the United States during this period since 2008, and 20 of those were owing to terrorism.

This is why I say those willing to kick the constitution to the curb over fear of “terrorism” are sheep, not bravehearts. And the government officials who issue thousands of ‘national security letters’ for warrantless searches every year and requisition Verizon business records on millions of customers, are frankly betraying the Constitution.

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Arrow 39 replies Author Time Post
Reply Juan Cole: How Unreasonable Searches of Private Documents Caused the American Revolution (Original post)
Hissyspit Jul 2013 OP
dylan33 Jul 2013 #1
enough Jul 2013 #2
dixiegrrrrl Jul 2013 #3
kardonb Jul 2013 #17
Android3.14 Jul 2013 #31
Bonhomme Richard Jul 2013 #4
Octafish Jul 2013 #5
dkf Jul 2013 #6
silvershadow Jul 2013 #15
nolabels Jul 2013 #7
kentuck Jul 2013 #8
ellennelle Jul 2013 #9
Civilization2 Jul 2013 #13
cantbeserious Jul 2013 #10
Demeter Jul 2013 #11
Hissyspit Jul 2013 #16
Demeter Jul 2013 #20
Skittles Jul 2013 #33
Hissyspit Jul 2013 #35
Skittles Jul 2013 #36
Doctor_J Jul 2013 #12
starroute Jul 2013 #14
kentuck Jul 2013 #21
Demeter Jul 2013 #22
ReRe Jul 2013 #18
WillyT Jul 2013 #19
Mojorabbit Jul 2013 #23
felix_numinous Jul 2013 #24
Th1onein Jul 2013 #25
Hissyspit Jul 2013 #26
Fumesucker Jul 2013 #27
AnotherMcIntosh Jul 2013 #28
galileoreloaded Jul 2013 #38
Spitfire of ATJ Jul 2013 #29
libodem Jul 2013 #30
treestar Jul 2013 #32
Uncle Joe Jul 2013 #37
TheKentuckian Jul 2013 #39
defacto7 Jul 2013 #34

Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:05 PM

1. I Couldn't

Agree more it is unbelievable

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:22 PM

2. Very well argued by Juan Cole. Thanks for posting this today Hissyspit. (nt)

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:23 PM

3. "NSA only claims to have disrupted 10 of them"

In the Congressional hearings where NSA claimed that "many" (over a dozen) terrorist plots were foiled,
every instance that was cited included one of the participants on the intercepted calls, emails and other material that was not inside the United States.

In other words, all of the cited "success stories" were cases in which the NSA and CIA, along with whoever else was involved, was actually watching foreigners who were either trying to do evil things on their own or were working with Americans to do evil things: a foreigner, in a foreign nation, was one of the endpoints of the communication in each case.

THAT is supposed to be the legal limit of the Patriot Act.

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Response to dixiegrrrrl (Reply #3)

Thu Jul 4, 2013, 08:19 PM

17. 10

"only " 10 ? That means the y have saved many people's lives , doesn't it ! I cannot see anything wrong with that . Quit being so damned paranoid about everything . Be glad our government tries to keep you safe ( and free to believe every garbage being spread about !

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Response to kardonb (Reply #17)

Fri Jul 5, 2013, 03:23 PM

31. Oh wow, now here is an intelligent argument.


According to you, it is okay for a government to secretly restrict civil liberties and lie to the public as long as it means it will save "many people's lives".
Many people lose their lives each year, because people lose their tempers. Thorazine helps control a person's temper. Therefore you will be just fine if with a government that injects the entire population with regular doses of thorazine in order to reduce the number of folks who lose their tempers and thereby save "many people's lives."
Try reading "This Perfect Day" by Ira levin, and then we'll see if you can compose a cogent argument.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:23 PM

4. I can tell you that the DOD doesn't consider it's emails.......

like postcards.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:25 PM

5. Papers they all wrote in longhand...

...using quill and ink.

With all the thought and work they put into it, they likely treasured each letter in every letter.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:42 PM

6. "Profound Betrayal of the Constitution"

 

That says it all.

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Response to dkf (Reply #6)

Thu Jul 4, 2013, 07:53 PM

15. Yep. When will heads roll? Whose? It's not going away, thank God or Not. More than a few

might?

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 06:48 PM

7. Absolute power corrupts absolutely

The repercussion, a little bad press

The folks around the beltway have been seduced with their own insincerity. They are overwhelmed by the enormity and realized they wouldn't get very far unless they played by the unwritten rules of the place. The more they get exposed the more they will dig in and say try to stop us. After all, just remember, we be messing with their future job prospects and retirement. They will fight us tooth and nail, and just think about it, if you had worked yourself up and were somehow in their positions (they figure they have the gravitas because they earned it) how much would you really be that much different?

Humans v. Corporations: Unequal Privacy
https://movetoamend.org/humans-v-corporations-unequal-privacy

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:18 PM

8. Juan Cole and I are on similar wavelengths.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:19 PM

9. link please?

thx

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Response to ellennelle (Reply #9)

Thu Jul 4, 2013, 07:40 PM

13. google works,.

 

http://www.juancole.com/2013/07/unreasonable-documents-revolution.html

I entered "Juan Cole: How Unreasonable Searc", first link was the above.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:28 PM

10. Thank You For Sharing

eom

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:33 PM

11. A link would be really helpful here: LIKE THIS ONE

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Response to Demeter (Reply #11)

Thu Jul 4, 2013, 07:57 PM

16. Sorry, family here for dinner and I was operating the grill.

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Response to Hissyspit (Reply #16)

Thu Jul 4, 2013, 08:26 PM

20. Got your back, Hissyspit

Enjoy the holiday!

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Response to Hissyspit (Reply #16)

Fri Jul 5, 2013, 04:56 PM

33. you want I should kick your grilling ass, Hissyspit?

yes INDEED

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Response to Skittles (Reply #33)

Fri Jul 5, 2013, 06:15 PM

35. If my ass is grilling

I have more important immediate concerns.

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Response to Hissyspit (Reply #35)

Fri Jul 5, 2013, 06:19 PM

36. YEE HAW!

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:35 PM

12. He's a Rand Paul loving Libertarian who always hated Obama and didn't get a pony

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 07:52 PM

14. Does this mean all those seizures of computers are unconstitutional?

From laptops being seized at the border to all the computers, backup drives, and cellphones of anybody even being investigated by the FBI being seized and held for months, this has become one of the most wide-ranging of abuses.

And it isn't even necessarily terrorism-related -- as I recall, when Steve Jackson Games was raided 20 years ago on suspicion of hacking, they hauled away all the business records and materials for the next game release.

I hadn't previously noticed the word "effects" in the 4th Amendment. But now I'm starting to wonder if this whole "we'll take all your stuff and leave you with nothing" approach might not be purely illegal.

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Response to starroute (Reply #14)

Thu Jul 4, 2013, 08:26 PM

21. "effects" are personal belongings.

From my interpretation.

It could mean the pocket watch that Grandpa gave you. Or that fine piece of china that you have displayed. Or it could mean that fine rifle you keep in your possession...

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Response to starroute (Reply #14)

Thu Jul 4, 2013, 08:28 PM

22. Of COURSE It's Illegal!

The Rule of Law only applies when and if the PTB say it does. If you have to ask, you aren't one.

Until the Revolution.

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 08:21 PM

18. K&R


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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 08:25 PM

19. K & R !!!


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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 08:43 PM

23. Awesome piece! Thanks! nt

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Response to Hissyspit (Original post)

Thu Jul 4, 2013, 10:47 PM

24. K&R!

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 02:55 AM

25. Great find! nt

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 06:21 AM

26. Kick

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 06:26 AM

27. K&R

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 01:44 PM

28. The revolution is already over. We lost. There won't be another. Google Peterloo if you think

 

otherwise.

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Response to AnotherMcIntosh (Reply #28)

Fri Jul 5, 2013, 06:34 PM

38. this post has a deficit of imagination :)

 

i think.

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 01:57 PM

29. The logic is that since a business can't exist without the government,...

....than a business is actually a subject of the government and must abide by any and all laws the government chooses to impose upon it.

This is FINE if the government is operating in good faith as a representation of the will of the people but not so good when the government is operating independently where the people are not only ignored but considered to be an obstacle to achieving it's goal. And that's especially true when that goal is not revealed to the people because they would reject it.

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 02:54 PM

30. Yes

I always like to personally thank Ralph Nader, for making sure Bush won in 2000, and the ensuing Patriot Act.

Thanks, Ralph, for the loss of our right to privacy from our emails to the airport.

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 03:24 PM

32. How does he know what the founders would have automatically agreed to regarding electronics?

That's a question in itself.

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Response to treestar (Reply #32)

Fri Jul 5, 2013, 06:29 PM

37. The fundamental point is the same, privacy of communications and records.

Unless one believes the founders thought that all communications and record keeping technology would stop with the quill?

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Response to treestar (Reply #32)

Fri Jul 5, 2013, 06:37 PM

39. What leads you to believe they wouldn't or even that it is plausible they wouldn't?

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Response to Hissyspit (Original post)

Fri Jul 5, 2013, 05:21 PM

34. Great historic points

relevant to the present.

Thanks.

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