Transcript of the Edward Snowden portion of my show this week

[JDPriestly]

47. Stephen, it's more complicated than that.

Here is the text of the Fourth Amendment because we should never lose sight of what we are talking about:

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.

http://www.law.cornell.edu/constitution/fourth_amendment

The comment at that website states that the Fourth Amendment focuses on the security and protection of the home. In fact, some of the early, pre-revolutionary cases that are believed to have given rise to the Fourth Amendment had nothing to do with the privacy of the home.

John Adams' defense of John Hancock based on an insufficient warrant concerned the Liberty, a ship, not Hancock's home. The Fourth Amendment does not specifically mention the home. The assumption that the Fourth Amendment is about protecting just the home seems absurd to me. It is not supported in the history of the revolutionary period.

The trigger for the dispute between the American revolutionaries and the British government was the British government's enforcement of import duties and restriction of trade in the American colonies. The British government wanted to tax and control the products that Americans brought in. To this end, they issued general warrants that permitted the British to enter the businesses, ships and homes of Americans to search for illegally imported items.

Here is an article in the Indiana Law Journal that discusses the likely original intent of the drafters of the Fourth Amendment. Madison drafted the Fourth Amendment for our Constitution based on the work of John Adams.

Do read the whole article, Stephen Leser. I hope you enjoy it.

1006
INDIANA LAW JOURNAL
[Vol. 86 79
Several themes that found later resonance in John Adams’s views and in Fourth
Amendment jurisprudence can be seen in Thatcher’s arguments, including the
acknowledgement of probable cause as a standard to measure the propriety of an
intrusion, a concern with standardless discretion, and the temporary nature of
warrants. Still, it was Otis who inspired Adams, and many of the principles that
Otis advocated found a place in Adams’s writings and subsequent search and
seizure constitutional provisions. Specifically, significant aspects of Otis’s
arguments became elements of Article 14 and Fourth Amendment structure and
jurisprudence. They include the following: identifying the right to be “secure” as
the interest implicated by a search or seizure; listing the home as a protected place;
utilizing the common law search warrant as a model for when warrants can issue;
defining unjustified intrusions as “unreasonable”; and indicating that probable
cause based searches and seizures are proper. More broadly, Otis’s concerns about
the need for certain procedures, the scope of intrusions, and the arbitrary use of
authority, have had continued importance in search and seizure jurisprudence to
this day. Underlying all of those arguments and principles was a quest for objective
criteria to measure the legitimacy of a search or seizure.

. . . .

Many of the state governments at the time of the American Revolution adopted
legal protections against unreasonable searches and seizures. . . . Those protections,
embodied in the constitutions of the various states after declaring their
independence, typically addressed only abuses associated with general warrants. The Massachusetts Constitution, drafted by John Adams in 1779 and adopted by the Commonwealth in 1780, offered a much different model. The constitution Adams created was preceded by a “Declaration of Rights,” including a search and seizure provision that ultimately became Article 14, which provided:
Every subject has a right to be secure from all unreasonable searches
and seizures of his person, his house, his papers, and all his
possessions. All warrants, therefore, are contrary to this right, if the
cause or foundation of them be not previously supported by oath or
affirmation, and if the order in the warrant to a civil officer, to make
search in suspected places, or to arrest one or more suspected persons,
or to seize their property, be not accompanied with a special
designation of the person or objects of search, arrest, or seizure; and no
warrant ought to be issued but in cases, and with the formalities
prescribed by the laws

http://www.olemiss.edu/depts/ncjrl/pdf/CLANCY/Clancy.%20ADAMS%20and%20Framers.PDF%20version.pdf

I added the emphasis.

The FISA orders and searches and seizures by the NSA closely resemble the general warrants that were so hated by the American colonists. (It was reading the Verizon order that shocked me into becoming a crusader on this issue. It is far too general, far too sweeping. I was just speechless.) They do not conform to Adams' and Madisons' and the Founding Fathers' standard. They are not based on probable cause and they do not identify with specificity the persons, places, things, etc. to be searched. And they do purport to authorize searches.

Since the introduction of telephones, the internet and other new technologies (including the automobile) the question is whether and how the Fourth Amendment should apply. These new technologies permit intrusions into our lives and the amassing and analysis of data that would have astounded our Founding Fathers.

The NSA takes the view that it can do what it wants. I and, from what he has done and said, Edward Snowden and many others strongly disagree.

Since at least the Franklin D. Roosevelt era, our government with a nod from the Supreme Court has increasingly violated our rights under the Fourth Amendment. As we use more technology that makes the sidestepping or ignoring of the Fourth Amendment less noticeable to us, we need to defend our rights.

To explain: violations of the Fourth Amendment are obvious when the police come and knock down your door without a warrant. But today, the government can accomplish almost the same degree of invasion of your personal privacy with no noise, imperceptibly by just reading your text messages to your boyfriend for example. That's pretty horrible.

The Supreme Court has, in the past, suggested that the test to apply in deciding whether a search or seizure violates the Constitution is whether we have a reasonable expectation of privacy as to the person, place, thing searched. That is a pretty weak test in my opinion because the government and the Supreme Court have told us that we can't expect much privacy at all. The expectation of privacy is measured not by our subjective expectation of privacy but by the Court's expectation of privacy. And for example Anthony Wiener's expectation of privacy about his person is probably very different from mine. But that is the test. It is ultimately therefore the Supreme Court Justices' expectation of privacy that controls the test I suppose.

Der Spiegel claims that the NSA can use various technologies to view you as you type on the internet -- if you have Skype, they can view you supposedly -- and Snowden stated that the NSA employees can watch us as we edit on the computer. That is an example of a new technological capacity that the Supreme Court has not ruled on.

I would assert that I have, at the very least, a reasonable expectation of privacy to any information that I use a password to get including my personal identifying information on DU. People certainly have an expectation to privacy if that encrypt their messages or use some sort of program that limits the collection of their history. I would also assert that I have a reasonable expectation of privacy as to my location when I am not in a government office, and there is no search warrant for me. I would assert a reasonable expectation to my financial accounts, to the interior of my car, to my phone records, to the content of my phone records, my e-mails and many, many other things. I would assert a reasonable expectation of privacy to anything I have or use on my computer that is not specifically placed by me on a website that is open to the public. I believe that I have a right to expect privacy in my Google searches. If Google asks my permission to collect them, fine. But it is up to me to consent to government access to them.

Those who argue in support of the NSA surveillance rely on that Maryland case decided by the Supreme Court in the late 1970s. Supreme Court decisions make general rules based on specific circumstances. The specific circumstance in that case concerned obtaining pen registers from the phone company in the context of a criminal investigation. The Court did not necessarily approve of the NSA's obtaining the pen registers of millions of innocent people, then sorting and analyzing them so as to determine who calls whom, what our social networks are. The facts are very different.

We need to obtain new Supreme Court rulings by bringing new cases, instances in which innocent people are placed under surveillance. Changing precedents set by the Supreme Court is a war of attrition. The past decisions have to be questioned, distinguished, meaning differentiated based on the facts or the law. It can take a long time to correct a situation. Think of the "separate but equal" battle. But so far, the U.S. government has made bringing new cases that are not related to criminal activity difficult if not impossible by asserting the right to withhold evidence based on national security interests.

Whether the government should withhold such evidence is a political issue. I believe the government's policy in that regard needs to be changed.

We also need to push Congress to pass new laws that prohibit the NSA's abuse of its capacity for surveillance. To that end, we need to change public opinion, to alert people to the dangers of excessive NSA surveillance.

Snowden has played a very helpful role in alerting Americans that he witnessed what he believed was excessive surveillance when he worked as a private contractor for the NSA.

I'm with John Adams and his fellow revolutionaries. I want to see the Fourth Amendment enforced so as to protect our privacy. I want the standard to be the issuance of a warrant that complies with the Fourth Amendment.

I do not think that Americans will put up with the status quo once they understand what is going on, what it means for their loss of privacy. Snowden has done us a favor by starting the conversation. Without seeing the Verizon order, I for one would not have understood just how bad the problem with the NSA surveillance is.

I support Edward Snowden's efforts to start a conversation. In the end, this is an issue that has to be dealt with through international protocols. I don't want the Chinese, the Germans, the Russians or the Portuguese or the British to place my electronic data under surveillance any more than I want the American government to do it.

We all, we earthlings, need to protect our right to privacy. It is a universal right.