A right to nonsurveillance?

Public outrage over broad surveillance of all of us by the NSA and other government agencies raises the constitutional issue of just what rights are involved.

The Fourth Amendment states:
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.
For this discussion the key word is "their". In other words, personal property bounding a zone within which one has a reasonable expectation of privacy. That is not necessarily synonymous with a property boundary. We don't have an expectation of privacy on that part of real property that can be easily seen from outside it. We have it for sealed postal mail but not for postcards, although strictly speaking, once posted postal mail belongs to the recipient, not to the sender, except that the sender may retain a copyright to the creative contents of it. That is why a warrant is supposed to be required to open sealed postal mail, although it is less clear that one is required to peer through the envelope with something like a scanner or sniffer, and these are now used regularly to detect dangerous or illegal contents.

New technology

Technology has created new situations that challenge what is included within "their". The first main one was telephone conversations, and the desire of government agents to "tap" them. The course of jurisprudence has been to treat them as private, requiring a warrant to tap, unlike a conversation conducted by air in an open public space. The telephone circuit was deemed to create a kind of "wrapper" like a postal envelope, creating a zone in which privacy is expected.

This has led to further extension of zones of privacy in the form of state anti-eavesdropping or anti-recording statutes forbidding audio and/or video recording of phone or open conversations, either without the consent of all parties, or at least of the party making the recording being disclosed to the others. Such statutes have been invoked to prosecute citizens recording police operations, but courts have held that police and other public officials do not have an expectation of privacy while they are doing their public jobs.

We also get the issue of the privacy of information provided someone for one purpose being used for other purposes to which the person providing the information did not consent. This is especially salient with medical information.

So we get to the question, does anyone have a reasonable expectation of privacy to the kind of information the NSA and other government agencies and contractors have been collecting and storing? Maybe not.

The question comes down to whether one has a property right in the information, which includes not only records of who phoned, texted, or emailed whom and when, but also the contents of the communications. The government is making the argument that the contents are only being read by machines and flagged for suspicious content, and that they get warrants for a human being to read or listen to the records, but does that satisfy the Fourth Amendment? Civil libertarians argue it does not, that gathering and keeping the records is itself a search, and violates the terms of service of the carrier of the communications with the users, and thus is without consent. A machine reading the communications is also a search. The Fourth Amendment makes no requirement that the search has to be done only by a human being.

It should be noted that congress passed a statute making it a federal felony for a private party to violate the terms of service of a computer or electronic communications service without controlled access. The statute is unconstitutional with respect to private persons, but could arguably be applied to remove government employees or contractors from their positions. However, it conveniently exempts the government from penalties, thus allowing it to do what would be a statutory crime if done by a private party. But it does create an arguable property right in the information requiring consent to uses to which the provider of the information did not consent.

On the other hand, if consent is not sought or given, has the user put his information into the public domain, or granted it to someone else? Or is it the equivalent of postcards? We may need to establish that people need to encrypt their communications from end to end to have an expectation of privacy for their contents, and retain a property right in their passwords or passcodes.

Broader surveillance

In George Orwell's 1984 the Party required 2-way video surveillance telescreens in every room of every house of the educated class. It was claimed they were not in every room of the lower classes, the plebs, and that one could escape surveillance outdoors, especially in woods. Today we have cellphones we carry with us that can be used as listening devices and to track our movements, but we also have surveillance cameras, drones, and satellites covering the outdoors. Big Brother is now watching and listening to us, almost all of us, everywhere, almost all the time, all without a warrant, with no effective limit on what information can be gathered, stored, or analyzed, or how it can be used or misused. With technology that can falsify not only audio recordings, but video recordings, in real time, to potentially incriminate anyone for anything, it is no wonder that even senior government officials are alarmed, because they are not exempt from the coverage.

The only thing missing is us being able to watch Big Brother. We have some of that within the private sector and state and local government, but the federal government is asserting state secrets and national security, and threatening to prosecute anyone who reveals things that have been common knowledge for decades.

What expectation of privacy do we have for all the activity the government has been surveilling? We don't have particular property rights in most of it, so it would seem to be beyond the protection of the Fourth Amendment. What we need is a new, broader right.

A right to nonsurveillance

One won't find this one spelled out in the Bill of Rights, unless it is in the Ninth Amendment. It is doubtful that the Framers would have recognized it. It is argued, not implausibly, to be a necessary and proper power to gather, store, and analyze information needed to carry out one's official duties. But it can also be argued, plausibly, that the kind of sweeping surveillance being conducted by the federal government, and other governments, goes far beyond what is necessary and proper to carry their other powers into execution.

Asking the courts to draw the line will probably be necessary along the way, but it is probably expecting too much of the courts to engage in line-drawing that is more properly the subject for legislation.

I have proposed the following amendment:
The people shall be secure against general and pervasive surveillance in private and public places, whether done by government or private actors, that has a chilling effect on their private and civic activities, without specific public court orders pursuant to acts of Congress for national security.

The saga has only just begun.

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A defect in the Constitution

A defect in the Constitution that allows much of that to which we object arose from the presumption on the part of some Framers, who we can call Tories, that federal courts would have jurisdiction over common law crimes, and the presumption of others, who we can call Whigs, that it would not, without the two groups discussing the point or resolving it. Common law crimes included offenses like murder, manslaughter, mayhem, riot, kidnapping, false imprisonment, arson, theft, assault, trespass, fraud, forgery, perjury, blasphemy, sedition, seditious libel, treason, contumacy, official  misconduct, and various sex crimes. Thus we have language that allows for removal from office for treason, bribery, or high crimes or misdemeanors, but only specific authority to punish for treason, not for bribery or high crimes or misdemeanors. There is also authority to punish for counterfeiting, piracy, felony on the high seas, offenses against the law of nations, and military crimes, but nothing else. I suspect the people who wrote that presumed those offenses could be prosecuted as common law crimes, but when Republicans (appointees of Jefferson) prosecuted Hudson and Goodwin, editors of the Hartford Courant, in 1806, for criminal libel (for incorrectly reporting that Jefferson illegally transferred $2 million to France to purchase Western Florida, then owned by Spain), the defense was that there was no authority for common law crimes under the U.S. Constitution. It took until 1812 for the case to make it to the Supreme Court, by which time the issue was so settled that prosecution counsel didn't even bother to show up in court, and Justice William Johnson, Jefferson's first appointee to the Supreme Court, writing for a unanimous Court, rightly decided that defense arguments were correct, and that there was no authority for common law crimes. The case is discussed on our site at http://constitution.org/ussc/007-032jr.htm

In that case we see the playing out of the longstanding tension between the Whigs and the Tories, then represented by Republicans and Federalists. The case had originally been brought by Republicans, partisans of Jefferson, making Tory arguments against those who had been taking Tory positions, and ultimately decided by a Jefferson appointee, supporting the Whig position. This tension continues to play out into our own time.

The point here is that there is missing authority in the Constitution to hold officials accountable. My proposed amendments address this by:

1. Making crimes of violations of the Constitution by officials.
2. Removing obstacles to criminal prosecution by private parties.
3. Authorizing grand juries to remove official immunity from officials, and to decide which court, state or federal, has jurisdiction (thus largely eliminating removal jurisdiction by federal courts of state criminal cases).

Taken together, my amendments carefully re-weave the web of government activities to make it much more difficult to commit the abuses we now suffer. But you have to analyze them carefully to see how the pieces work in combination. 

See also:
  1. Excerpt from The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of ..., Bruce Ackerman
  2. Thomas Jefferson v. The Courant 
  3. Common Law Crimes Are Unconstitutional as Ex Post Facto Laws, Anthony Fejfar, 2009.
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