How Unreasonable Searches of Private Documents Caused the American Revolution

Just FYI, the Restore the Fourth movement in defense of the Fourth Amendment of the Constitution is holding protests all over the US today.

On the Fourth of July, Americans should be celebrating the freedoms enshrined in the US constitution, especially the Bill of Rights. At one time, Americans minded when the government usurped their rights and made over-reaching claims to be able to invade their privacy. No more. Most Americans have become little more than bleating sheep, perfectly happy to be sheared by faceless bureaucrats. They are willing to surrender to the state their most private information, the contemporary electronic records of everywhere they go, who they talk to and for how long, who they email, and even the contents of their communications. With the rise of datamining software, this information can be extremely revealing, and government and contractors with access to it can engage in all sorts of blackmail, insider trading, and corruption. Since the surveillance apparatus is “classified” and top secret, there is no effective oversight to ensure against public harm.

The Founding generation of Americans was particularly exercised by the privacy of their papers, the equivalent of today’s email and electronic records. They put the Fourth Amendment into the Constitution, which says:

“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.

Note that “papers” are distinguished here from “effects.” That is not an accident, as Donald A. Dripps argued [pdf]:

“The Fourth Amendment refers to “papers” because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute un til the Civil War. The one Founding – era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd , which remained the law for another ninety years. Boyd rightly held that “papers” deserve more constitutional protection than “effects.” Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated , and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different.”

The most important 18th-century precedent in English law for our Fourth Amendment is Entick v. Carrington of 1765, in which Lord Halifax, acting for the king, sent agents into the home of John Entick on a fishing expedition for papers and documents that criticized the king. This Revolutionary War site notes:

“During the trial, Entick charged that the entire search and seizure had been unlawfully conducted, and the Court agreed. The Court said that Lord Halifax had no standing to issue the order to search the premises, that probable cause that a crime had been committed had not been demonstrated and that the warrant allowed a general confiscation of anything the officers found, not specifying exactly what they were to look for or could seize. In addition, there were no records kept of what the officers seized.”

In the New World, however, colonial authorities ignored this important case and began issuing what were called “writs of assistance,” a kind of blanket search warrant that allowed the crown’s tax authorities to try to combat smuggling by indiscriminate search and seizure. (We would now call them “National Security Letters.”) Attorney James Otis took the case of 50 merchants who sued the British crown over these overly broad warrantless searches, and his powerful speech condemning these practices was heard by John Adams, who considered it the spark that led to the American Revolution.

George Mason’s Virginia Declaration of Rights of 1776 forbade these writs of assistance. Thomas Jefferson depended heavily on that document when he authored the Declaration of Independence. When he talks about “Life, liberty and the pursuit of happiness,” one of the things he means by liberty is that the government shouldn’t be able to snoop at will through your private letters.

The sentiment against warrantless searches and overly broad writs of assistance was put into the constitution by James Madison, with what became the 4th Amendment.

Over time exceptions were granted to the general principle that the government cannot at will see your papers. One of these exceptions is the “plain view” principle. I.e. if you send a postcard through the mail, you’re not assured of privacy since anyone can see the message you wrote on it.

America’s current national security state, which is a profound betrayal of the Constitution, holds that our email and our documents in the cloud are like postcards and thus can be examined at will by intelligence analysts and law enforcement. I doubt any ordinary Americans thinks that their email correspondence and digital documents are anything at all like a postcard.

Another exception, instituted as recently as 1979, is the stupid “third-party doctrine,” which comes out of a fascist court ruling that since you share your phone records with your telephone company, you can’t expect them to be private from the government. What? What brain-dead jurist thought that up. When I contract as a private citizen with a business for a set of legal transactions, that is none of the government’s business. A law is needed to overturn this ridiculous doctrine.

We need a privacy law in the United States that would settle these issues for electronic papers and reinforce the plain language of the Fourth Amendment, which is by now almost a dead letter.

The argument that we have to give away the 4th amendment because of “terrorism” is equally stupid. (King George III set aside the need for warrants and specific searches on the grounds of fighting “smuggling,” the precedent for our current use of “terrorism” for this purpose). Charles Kurzman points out that there have only been 100 terrorist plots on US soil since 2008 and that the NSA only claims to have disrupted 10 of them through electronic surveillance. There have in those 5 years been 25,000 terrorist attacks worldwide, of which the NSA claims to have foiled 50 through electronic surveillance. So they are not actually so effective that we should be eager just to abrogate a whole amendment to the Constitution over it. And, moreover, there were 70,000 violent fatalities in the United States during this period since 2008, and 20 of those were owing to terrorism.

This is why I say those willing to kick the constitution to the curb over fear of “terrorism” are sheep, not bravehearts. And the government officials who issue thousands of ‘national security letters’ for warrantless searches every year and requisition Verizon business records on millions of customers, are frankly betraying the Constitution.

33 Responses

  1. Terrorism is a scam. Likelihood you’ll be killed by terrorists? 1:10,000,000 to 1:20,000,000. Likelihood you’ll be killed by falling? 1:247. Where is the outrage calling for more handrails? Fear sells; irrational fear makes people money and keeps them making money. How much worse does it have to get before a majority demand a constitutional convention? It’s time to put a choke-chain on the plutocrats.

    • “Terrorism is a scam.”

      Richard Convertino was the Assistant U.S. Attorney in Detroit who obtained the first post 9/11 terror convictions.

      Previous to that he received a commendation by United States Attorney General Janet Reno for receiving an unprecedented number of convictions against organized crime figures in Michigan while serving with the Office of United States Attorney in Detroit.

      Convertino later criticized the government for trying to create public hysteria in order to justify government spending that created jobs and job security for those involved in federal law enforcement.

      The U.S. Department of Justice later vacated the 9/11 terror convictions obtained by Convertino, who faced federal obstruction indictments, civil rights suits by the criminal defendants in his terror case investigation. Convertino was cleared in all those cases and now is in private practice defending criminal cases.

    • There’s a 9/11 every month – about 3,000 men, women and children die in traffic accidents every month right here on American soil. Where is the insistance on a memorial to the victims of June, 2013? Republicans insisted on starting two trillion dollar wars over 9/11; where’s the war on traffic fatalities?

      Perpetual war = perpetual profits. That’s the Republican platform in a nutshell.

      • Every day guns in the USA kill 80 to 85 people according to MSBNC. It is mostly intentional killing, homicide. That is around 2,500 people are killed by guns every month.

        In traffic accident, people do not kill intentionally, that is why they are called accident.
        Accidents do happen, one cannot eliminate them.

        However, with guns, there are few accidents; most of the killings are intentional. Even the presidents of the United States have been gunned down. Where is the outrage against guns?

        About 30,000 people are killed by guns very year. Many times more than 9/11
        Where is the war on Guns?

      • “where’s the war on traffic fatalities?”

        Well, Bill, there has been a “war” on traffic fatalities for as long as I can remember. Over the years it has involved everything from red-light and speed cameras to increased police presence on highways during holidays to apprehend drunk drivers.

        “Where is the insistance (sic) on a memorial to the victims of June, 2013?”

        You really must know the difference between victims of traffic accidents and victims of terrorist attacks, don’t you, Bill?



  2. Most Americans have become little more than bleating sheep, perfectly happy to be sheared by faceless bureaucrats.

    What I find most troubling on this point, is the degree to which my fellow liberals are fine with this because it’s president Obama in charge. I try arguing with my friends, thinking they’d be reasonable but all I get are:
    “I’ve got nothing to hide,” or “if it keeps us safe from the terrorists, then so be it.” So frustrating. Such ignorance.

    Also, Smith v. Maryland is just absurd. The 4th Amendment is conditioned upon peoples’ “reasonable expectation of privacy,” and as such, each one of these 4th amendment carve outs (airports, 100 mile from border searches, DUI checkpoints, dog sniffs, public safety exceptions (SEE Tsarnaev), national security letters etc . . .) weaken our protections in two respects: (i) our reasonable expectations are diminished, which leads to an equal diminution in our expectations of privacy and (ii) authorities will find ways to make their searches fit within those exceptions. When you have a hammer, every problem is a nail.

    Keep up the righteous outrage Juan! These abuses warrant it.

    • There is no such thing as absolute freedom, except death. So, until then, just enjoy what has been deemed “reasonable,” which is a direct/indirect result of managing chaos and maintaining the veneer of “civilization” in an ever burgeoning population.

  3. Rather than celebrating these freedoms, it seems more fitting to mourn their loss – a consequence, I’m convinced, of so long denying them to others.

  4. I’m scratching my noggin.
    How do folks who want the Constitution back vote for the Dem/GOP duopoly ?
    A Communist or John Bircher is closer to the Constitution than Obama or Rmoney.

    • Yes, the left and right have A join. The center wants to give their liberty away. Go figure.

  5. Settle down, bleeding hearts. No one but a couple of liberal whistle blowers cares about comrade Greenwalds glorious crusade. Your moral betters run the NSA and besides, since 911 Uncle Dick took your civil liberties away as punishment for letting the Supremes appoint him as president!

    So honestly it’s been game over for over a decade. Just sit back and watch the fireworks.

  6. “Most Americans have become little more than bleating sheep,…”

    Nothing new there. William J. Lederer wrote a book that was published in 1961. Its title? “A Nation of Sheep.”

    • Perhaps the sheep analogy is not right. I suspect if a mother sheep saw someone kill her lamb she would, if she could, attack the killer. On the other hand, the mothers, fathers, grandparens, spouses, siblings and children of soldiers who died for the lies told and promoted by our government and corporate media have acquiesced to this crime and let the guilty get away with it. How many have helped to re-elect the politicians that got the nation into the Iraq war that took the lives of their loved ones and, in some cases, are spoiling to get our military into more wars – Iran, for instance?

  7. Professor, thanks for your daily commentary on national and world events, and for enduring the harassment you were subjected to under the war profiteering George W. Bush administration. I don’t believe that the 1979 court ruling you note was ‘fascist’ and it is over the top to describe it as such.

    Get a grip on yourself over the phone call logs. The intent is not to start another illegal war, like the one in Iraq, but to prevent a domestic ‘Benghazi’. We all know what the GOP has done in disgraceful partisan attacks, endless investigations and hearings with that tragedy. Partisanship aside, all the phone call records residing with billions of others in Utah, are not worth the life or limb of one more victim of a terror attack such as the recent one in Boston.

    • The 1979 third party ruling erased the distinction between what private business knows about you and what government does, establishing a form of state corporatism, and it did so for police purposes, a form of authoritarianism. State corporatism for police purposes is the classic definition of fascism.

      • The income tax erased the distinction between what private companies or corporations and banks know about you, in the way of income sources and amount, and what government does, tax you and keep records of your jobs, age, address and dependents. The data can also be used for police purposes to trace illegal activities or fraud. So is the existence of the income tax and the IRS a form of authoritarian fascism?

        • Such a bad analogy that I have trouble understanding the premise. The only thing I’m aware my employer shares with the Federal government is my annual income, and there is an obvious reason for the IRS to know that.

          Why does the Federal government need to know who I’ve been calling and emailing, for how long, and where I was when I was doing it? What is the legitimate purpose of this invasion of my privacy?

        • I don’t think the federal government needs to know who you’ve been calling or emailing, or where you were.

          I also don’t think Verizon should have denied a police request, and demanded a court hearing on principle, in the case of tracing the location of the active cell phone in the carjacked SUV of the Boston bombers.

          Until we have a Congress that is at least as interested in setting clear standards for the executive branch as to privacy, as they are for ‘protecting’ the unborn or repealing Obamacare, the executive branch will, apparently, lack common sense restraint as to metadata collection. All, perhaps, to preclude partisan attacks in the case of failure to prevent terror attack(s).

    • Professor Cole, thanks again for your site and this useful article. I wonder if people understand the difference between, say, Google knowing the contents of my emails and the government knowing.

      It has to do with the power possessed by the two entities. The worst that could happen if Google’s computers looked at my emails and made a mistake is that a partner advertiser might send me some junk mail that I might find embarrassing, or maybe they might show me some ads I’d find questionable, or in poor taste.

      On the other hand, suppose that the goverment collected the entire contents of my emails, texts, phone calls and so forth. Sometimes, government employees make mistakes – call them “false positives” – and my name comes up because it’s there. As a result, the government sends men with guns to my house. Sometimes these men make mistakes, and innocent people are killed. Suppose they take people in who then are falsely accused, tried and mistakenly found guilty and then spend a decade in prison. Or worse, they wind up in a legal limbo like Guantanamo.

      Also, I can withdraw my voluntary permission from Google and go elsewhere to obtain services. The worst part about PRISM is that it violated our rights for years in secret, without our permission, and we can’t trust our current Executive to be truthful with us.

      The Founders feared unchecked government power, and, reasoning that excesses of power were part of human nature, devised a system of government that would protect ordinary people from its vast power.

      Respect the Constitution and demand that it be adhered to by all in government.

      • “The worst part about PRISM is that it violated our rights for years in secret.”

        You appear to be confusing PRISM with the collection of metadata involving telephone Nos., Bill They are two separate programs. PRISM involves obtaining internet and E-mail communications from foreign (i.e., non-US) sources). The metadata sweeping up of telephone Nos. called involves US sources.

  8. People who say they have nothing to hide and are passive about invasive acts cannot give up inalienable rights, not mine, not even theirs.

    • These “rights” are not forever, as they will evaporate when you die. No system is perfect, as no person is. So, carpe diem…as tempus fugit.

  9. “I tried to warn you but you didn’t listen, you fucking idiots”

    Dwight D. Eisenhower

  10. Privacy is of no concern in the Soviet Union, it is contrary to the collective good.

  11. The Earl Warren-led U.S. Supreme Court championed the greatest civil rights revolution since the Abraham Lincoln era.

    Those years saw indigent rights expanded via interpretation of the Fourth, Fifth and Sixth Amendments. The Miranda, Katz and Gideon decisions were landmark opinions that gave reasonable and thoughtful protections to not only criminal defendants but the average citizen from police intrusions.

    The Rehnquist era generally saw limitations imposed upon citizen rights. One area this manifested itself in was police-initiated forfeitures of money and property that was purportedly linked to drug activity. Police seized your effects and you had to sue them and post a bond to try and recover your things back.

    In 1991, I sued the Michigan State Police on behalf of client alleging that the state’s drug forfeiture statute violated the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment for indigents unable to post a bond in such proceedings. A state circuit court agreed and the Office of Attorney General told me they did not want to appeal or otherwise further contest the matter since that law realized 11 million dollars in revenue for law enforcement in the state and a binding Court of Appeals ruling . I later learned a number of other attorneys had obtained rulings invalidating that law on the same grounds in trial court proceedings.

    These forfeiture proceedings I came to realize were primarily revenue-generating gimmicks that had little to do with guilt or innocence of criminal accused – in fact often police did not bother to bring criminal charges for drug possession and very often no drugs were found. If one was carrying around a wad of cash in his pocket he was assumed to be a drug seller – even if he was a successful businessman and presumably could show a source for the cash. The County Prosecutor had a special office that routinely negotiated settlements in these cases in accepting an amount less than it would cost for the claimant to try his case in court with an attorney. Minorities were targeted for these forfeiture proceedings, or so it seemed by the percentage of claimants I saw trying to get their seized property returned. These proceedings, I concluded, were an abuse of police power and a waste of resources that could be better used targeting narcotics distribution networks that had a serious and deleterious impact on American society.

    I feel that the Fourth Amendment is one of the cornerstones of American democracy and protects all Americans from arbitrary and overly intrusive law enforcement conduct.

  12. Well not that Prof. Cole needs my praise but he has hit on a very crucial point: the founding generation (FG), in addition to quite rightly wanting their papers secure, were also heavily involved in smuggling. They were trying to avoid onerous British taxes (and certainly trying to add to their bottom line) that had been set up as part of Britain’s imperial economy, which always subordinated the needs of colonies to the home country. It may not sound noble, trying to avoid taxes by smuggling, but the FG was pursuing the right principle: don’t let government agents or laws get so darn close! Don’t let them see and touch everything! Even when it’s supposedly “for the good of all” the central power inevitably abuses the powers placed in its hands. That’s why if police don’t execute a search warrant properly, what they find *is thrown out* EVEN IF if it helps convict an actual criminal of criminal acts.

    • Don’t forget, the FG wrote all that stuff about “all men are created equal,” yet still allowed for slavery, denied women the right to vote, etc., etc.

  13. The rich have been waging class warfare against the rest of in America for a very very long time. One of the assets that they have is the ability to monitor those of us who are not rich. I think that it would be incredibly stupid to give up the ability to monitor the rich and powerful once the power to control these assets changes hands.
    To find the relevant information that one needs to protect the society from predators one needs to sift through lots irrelevant information. How short sighted can people be to say that the power that the NSA and other agencies have should not be used. Such short sightedness really pisses me off. Yes, this power is clearly a double edged sword.
    So is the principle of jury nullification. But just as jury nullification is an important check on government power electronic monitoring can be used as an important check against the power of other special intrest groups.
    The two concepts of electronic monitoring and jury nullification actually connect well together.
    No institution has unlimited resources. The law enforcemtn authorities could decide how to budget their resources based on the feed back that they get from trials in which the juries have to vote on whether the law should be a law. If 1000 people were arrested say for Marijuanna possesion and 400 were convicted and 1000 were arrested for methanphetamine possesion and 700 were convicted the law enforcement authorities have been sent a clear message that the well informed citizens of thier jurisdiction think that meth possession is a bigger problem than pot possession.
    I so see how anyone can claim that thier papers have been unreasonably sized and searched when the government makes a list of who you call on a regular basis each month. Should I be concerned that while the government is looking to identify the hard drug trade it will uncover something else that someone wants to keep secret? Say for example that they are a closeted gay? Give me a break, with so much real crime no one is going to give a shit about such irrelevant information.
    The real problem is not that we have too much spying going on the real problem is that there is far to little.
    It should not even be called spying it should be called keeping tabs on things. Of course if people get the infornation that they need and they are to poorly educated to understanc its relevance then all this transparency will not make any difference anyways. Yes transparency that is an important word. WHY THE HELL SHOULD IT ONLY APPLY TO A GOVERNMENT?? It should also apply to the Sons of the Confederacy. It should also apply to the Cattle Ranchers Association. It shoiuld also apply to the Catholic Church. It should also apply to the Baptist Church. It should also apply to the Mormon Church. It should also apply to the American Inidan Movement. It should also apply to the NAACP. It should also apply to the Red Cross. Amen Hallajuha
    Thank you,

    • Jury nullication was used by Northern juries during the pre-Civil War slavery era to avoid convicting those charged under the unpopular Fugitive Slave Law.

      In Michigan, jury nullification is recognized, but a binding Michigan Court of Appeals decision holds that a judge may not instruct a jury that this right exists.

  14. Don’t confuse freedom with liberty

    This nation was founded on the idea that the fundamental purpose of its government is not actually to govern. Its purpose is to secure the liberty of the people. Therefore, Americans were to be citizens of a nation, not subjects of a sovereign. The people themselves were to be sovereign.

    The Founders also understood what George Washington summarized thus: “Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

  15. The rally in L.A. was a blast. Stay tuned to for future demonstrations.

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