The Intersection of the 4th Amendment and Computing
I rise today in support of the Fourth Amendment Protection Act. The Fourth Amendment guarantees the right of the people to be secure in their persons, their houses and their papers and their effects against unreasonable searches and seizures.
John Adams considered the fight against general warrants, or what they called in those days ‘writs of assistance,’ he considered this fight to be when the child Independence was born. Our independence and the Fourth Amendment go hand in hand. They emerge together. To discount or to dilute the Fourth Amendment would be to deny really what constitutes our very republic.
But somehow along the way, we became lazy and haphazard in our vigilance. We allowed Congress and the courts to diminish our Fourth Amendment protections, particularly when we gave our papers to a third party. Once you gave information to an Internet provider or to a bank. Once we allowed our papers to be held by a third party, such as telephone companies or Internet providers, the courts determined that we no longer had a legally recognized expectation of privacy.
Now, there have been some dissents over time. Justice Marshall dissented in the California Bankers Association v. Shultz case, and he wrote these words – “the fact that one has disclosed private papers to a bank for a limited purpose within the context of a confidential customer-bank relationship does not mean that you have waived all right to the privacy of your papers.”
But privacy and the Fourth Amendment have steadily lost ground over the past century. From the California Bankers Association case to Smith v. Maryland to U.S. v. Miller. The majority has ruled that your records, once they are held by a third party, don’t deserve the same Fourth Amendment protections. Ironically, though, digital records seem to get less protection than paper records. As the National Association of Defense Attorneys has pointed out, since the 1870’s, the government must get a warrant to look and read your mail, as is the case of Katz v. The United States, the government has been required to have a warrant to tap your phone. However, under current law, your e-mail, your text messages and other electronic communications do not receive the same level of protection as your phone calls do. Why is a phone call deserving of more protection than your e-mail or your text? Justice Sotomayor in U.S. v. Jones, the recent supreme court case that says the government can’t put a GPS tracking device on your car without a warrant says this – “I for one doubt that people would accept without complaint the warrantless disclosure of the government to the government of a list of every website they have visited in the last week, month or year. I would not assume that all information voluntarily disclosed to some member of the public for unlimited purpose is for that reason alone disentitled to the Fourth Amendment protections.
Justices Marshall and Brennan, dissenting in Smith v. Maryland said in emphasizing the dangers in giving up Fourth Amendment protections, they wrote — “the prospect of government monitoring will undoubtedly prove disturbing, even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts.”
In Miller and in Smith, the Supreme Court held that the Fourth Amendment did not protect records held by third parties. Sotomayor wrote in the jones case that it may be time to reconsider these cases, reconsider how they were decided, that their approach is, in her words, ill-suited to the digital age in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.
Today, this amendment that I will present, the Fourth Amendment Protection Act, does precisely that. This amendment would restore the Fourth Amendment protection to third party records. This amendment would simply apply the Fourth Amendment to modern means of communications. E-mailing and text messaging would be given the same protections we currently give to telephone conversations. Some may ask well, why go to such great lengths to protect records? Isn’t the government just interested in the records of bad people?
Well, to answer this question, you must imagine your Visa statement and imagine what information is on your Visa statement. From your Visa statement, the government may be able to ascertain what magazines you read, whether you drink and how much, whether you gamble and how much, whether you’re a conservative, a liberal, a libertarian, whom do you contribute to, who is your preferred political party, whether you attend a church, a synagogue or a mosque, whether you see a psychiatrist, what type of medication do you take. By poring over your Visa statement, the government can pry into every aspect of your personal life. Do you really want to allow your government unfettered access to sift through millions and millions of records without first obtaining a judicial warrant? If we have people who are accused of committing a crime, we go before a judge and get a warrant. It’s not that hard.
I’m not saying we won’t be allowed to look through records, but I’m just saying that the mass of ordinary, innocent citizens should not have their records rifled through by a government who does not first have to ask a judge for a warrant before they look at your personal records.
We have examples in the past, in our own country, of abuses of government. During the civil rights era, the government snooped on activists. During the Vietnam era, the government snooped on antiwar protesters. In a digital age where computers can process billions of bits of information, do we want the government to have unfettered access to every detail of our lives? From your Visa statement, the government can determine what diseases you may or may not have, whether you’re I impotent, manic, depressed, whether you’re a gun owner, whether you buy ammunition, whether you’re an animal rights activist, whether you’re an environmental activist, what books you order, what blogs you read, what stores or Internet sites you look at. Do you really want your government to have free and unlimited access to everything you do on your computer?
The Fourth Amendment was written in a different time and a different age, but its necessity and its truth are timeless. The right to privacy, and for that matter, the right to private property, are not explicitly mentioned in the Constitution, but the Ninth Amendment says that the rights not stated are not to be disparaged or denied. James Otis, arguably the father of the Fourth Amendment, put it best when he said one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle, and while he is quiet, he is as well-guarded as a prince in his castle. Today’s castle may be your apartment, and who knows where the information is coming from. It may be paper in your apartment, but it may be bits of data stored who knows where, but there is a reason why our government should be restrained from invading a sphere of privacy that is a timeless concept. Over the past few decades, our right to privacy has been eroded. The Fourth Amendment Protection Act will go a long way to restoring this cherished and necessary right.
I hope that my colleagues will consider supporting, defending and enhancing the Fourth Amendment, bringing it into a modern age when modern electronic and computer information and communications are once again protected by the Fourth Amendment. Thank you, and I reserve the balance of my time.