What This Country Needs

Posted on February 18, 2008

… is a movement to get the people in charge to take the Fourth Amendment — which defines our right to live without fear of government surveillance — as seriously as they take the Second Amendment.

Any time someone proposes a gun control measure, the legal wonks start parsing the words of the Second Amendment as if they were scholars arguing over some passage in the Talmud. Intense debates erupt over the precise meaning of phrases such as “well-regulated militia”, “right of the people”, and “keep and bear arms”. (Indeed, the Supreme Court will decide the future of Washington, D.C.’s handgun control laws next month in a case that hinges on whether or not the words “well-regulated militia” imply that there is only a collective right to have access to firearms, rather than an individual one.)

You would think that those wanting to carve holes in the Fourth Amendment would have to be even more creative than those wanting to carve holes in the Second, since unlike the Second Amendment, the wording of the Fourth is admirably clear:

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.

And yet, despite this clarity, the Fourth Amendment has essentially been reduced to meaninglessness thanks to a raft of exceptions that the courts have recognized over the decades.

Most troublingly, over the last 100 years there has been a willingness to view citizens’ electronic communications as somehow different than printed communications, and therefore subject to a looser standard when it comes to your rights to be secure from government searches. Despite affirmations of the Fourth Amendment’s relevance to electronic communications in cases like Katz v. United States, successive Administrations — arguing the existence of national security threats that could only be headed off with broad powers to surveil — have implemented a range of shadowy programs that skirt the edges of existing law.

The best advice anyone can be given regarding the privacy of their electronic communications is to assume you are being monitored at all times. How on Earth is this consistent with the desire of the Founders to guard their “persons, houses, papers, and effects, against unreasonable searches”?

There is one clear reason why lawmakers take the wording of the Second Amendment so seriously — because of the existence of a well-organized lobby, the National Rifle Association, that both advocates strenuously for such a literalist view of the Amendment, and intervenes politically to reward those who share this view and punish those who do not.

The Fourth Amendment lacks such a champion. While both the ACLU and the Electronic Frontier Foundation are doing important work to protect our right to privacy, neither organization has as a central focus the goal of shifting the terms of the debate from where they are today to a place where the words of the Amendment are respected literally, and where exceptions must be provided with iron-clad justifications to be taken into consideration.

In other words, somebody needs to start moving the Overton Window on this issue — shifting the actual terms of the debate, rather than just responding reactively to each new affront to our liberties.

Is there anybody out there who has taken up this challenge?