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home : opinions : opinions
February 21, 2019

6/1/2018 7:29:00 AM
The Fourth Amendment in the digital age

When it comes to vulnerable rights - those the state are threatening more and more every day - perhaps none is more endangered than those of the Fourth Amendment, protecting us against unreasonable searches and seizures.

To be sure, most headlines focus these days on our Second Amendment rights, and they are surely under siege, as globalist corporations and liberals and big-government bureaucrats plot the seizure of every gun they can.

And yet, as we report in today's edition, there is a robust grassroots movement in America that is dedicated, and fiercely so, to protecting our right to keep and bear arms. There's six million alone in the National Rifle Association, and their numbers are growing by the day, and there are millions more in similar gun-rights organizations.

So America is very diligent in keeping track of what the Left is up to when it comes to gun confiscation.

But the same is not true of the Fourth Amendment. There are no organizations with millions of dues-paying members out in the trenches protecting us against unreasonable and unnecessary government intrusions into our homes and property, and from the use of those invasions to prosecute and subjugate those the government has a beef with.

No such mass organizations exist (the ACLU no longer counts because of its partisan interpretation of the Fourth Amendment, and its silence and even support of the government raid on Trump's lawyer's office), but they should, for the Fourth Amendment is just as important as the Second, and it is being chipped away at day after day, week after week, both in federal and Wisconsin courts alike.

In Wisconsin in recent years, both liberal and conservative judges and justices have savaged the Fourth Amendment. The state Supreme Court especially needs to answer for egregious decisions that have eroded civil liberties and private property rights.

The high court's record on the Fourth Amendment is spotty at best - some solid rulings have been followed by patently absurd ones that have enlarged state police power at the expense of the due process rights of average citizens.

In the last five years, the court has authorized warrantless searches for minor traffic violations; sanctioned warrantless police entry into the constitutionally protected curtilage of homes for failure to stop for minor traffic violations; and dangerously expanded the community caretaker doctrine, which allows police to enter premises without a warrant or suspicion of a crime to help distressed citizens, by allowing entry when such distress is merely theoretically possible rather than actually suspected.

Now, on the federal level, the U.S. Supreme Court is considering a case, Carpenter v. United States, which some have deemed the most important electronic-privacy case of the 21st century. Every American should pay attention to the outcome, which is expected in June.

In the case, police arrested four men in connection with a series of armed robberies. One confessed and gave the FBI his cell phone number and the numbers of his cohorts.

The FBI then used magistrates' orders - not warrants - for the "transactional records" for the phone numbers, which the court granted because there were "reasonable grounds" to believe they were relevant to an ongoing criminal investigation.

No warrant was issued, mind you, because there was no probable cause.

The transactional records obtained by the government included the metadata of the calls - their dates and time, and approximate location. Based on that evidence, the government charged Timothy Carpenter with aiding and abetting robbery. Carpenter has challenged on Fourth Amendment grounds.

The case is important, because, if the government prevails, it can effectively trace every movement any citizen makes - because of the pervasive use of cell phones - 24/7 and for months at a time without any probable cause that the person is committing a crime.

Such mass surveillance of average citizens is anything but reasonable; it is quintessentially unreasonable.

The government is arguing that Carpenter knowingly volunteered the metadata of his phone records to a third-party cell phone provider - as we all do - and so there is no trespass (Carpenter doesn't own the cloud!) and no seizure of information from Carpenter himself.

That's an old-fashioned view of the Fourth Amendment, hanging the issue on a 18th-century view of government intrusion, that is, as trespass of the government onto your "property" or in your records. In fact, in 1979 the court ruled that individuals have no expectation of privacy in the telephone numbers they voluntarily surrender to third parties.

The argument is a lot more complicated than that, but that's the gist of it.

But times have changed since 1979 and, well, since 1791. New technology makes government snooping possible on a mass scale every hour of every day, and without trespassing at all. The question is, do you really surrender your privacy and property rights just because you store your records in the cloud? And is that even a choice, given the way the digital world is constructed?

To pose the question another way, is the government entitled to look at the metadata of our private calls and texts and emails without any probable cause or warrant, just because that information is in the cloud instead of our closets?

Of course not. And that goes for the locations and times and identity of calls, not just content.

If the government wins, it will be able to track anyone it wants, without probable cause, anytime it wants. It will be able to explore and search the metadata of phone and text records whenever it wants.

This cannot possibly be the intent of the Framers of the Fourth Amendment, who sought to protect the privacy of our documents and other property from an intrusive government and to keep the individual free from all-encompassing government surveillance.

If the government wins, that very intent will be out the window. The purpose of the Fourth Amendment would be gutted.

When we consider our constitutional rights in modern cases, we must always be careful to focus on what the Framers intended to accomplish, and not merely on the formats of the day by which those intentions could be violated.

James Madison, the author of the Bill of Rights, and those who supported those amendments set out to proscribe government power. In so doing, they wrote and spoke of the world in which they lived, and the need to protect "their persons, houses, papers, and effects, against unreasonable searches and seizures, .... 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."

They did not mention cell towers and the digital cloud; they wrote of the world they knew, of houses and papers and like effects.

But the method of storage, and the exact place of possession, was not the reason they wrote the amendment. The protection of what was stored privately was the reason; the protection of citizens from government power and surveillance was the reason, and so that must always be the consideration, no matter whether our private lives are stored in our closets or in the cloud or in some technological venue we cannot even yet envision.

Otherwise, well, a prison is a prison in any age.

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