Slashdot Quote

by fyngyrz

Considerably more germane to how the US is supposed to work than a religious quote, the constitution has this to say:

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.

Notice how a warrant has to be issued describing the “place” to be searched. The beginning of the amendment specifies “houses”, but the rest is more general – the implication is that your shed, your place of business, someone else’s coffee kiosk or bench or “mailbox of letters” or “container of packets”, all are protected against unreasonable search. What is unreasonable in this context? It’s right there, just read it: “right of the people to be secure” – that’s unreasonable to violate. If you’re not secure, you’ve been violated unless (a) they have probable cause and (b) they have a warrant and that warrant is supported by oath or affirmation.

With regard to communication modalities, at the time, what they had for remote communications was basically paper. Please note the explicit constitutional reference to the security of papers. You could write something down and send it elsewhere. This is where the idea that your mail should be secure comes from. Well, today, we have other mechanisms. Do you think that in ANY rational world, if the authors of the first amendment knew that you could send messages over wires or through the air, that they would have said, “Oh, well, in that case, you have no right to be secure? You can’t base such an argument on how “easy” it is to read such communications, because there’s nothing as easy to read as the mail is.

Those authors weren’t trying to enumerate the “only” places you were to be secure, they were trying to say you should be secure PERIOD unless… oath, probable cause, warrant. I read the “persons, houses, papers and effects” as a general set of guidelines that is broadly inclusive; that reading is particularly supported by “effects”, because that word is about as non-explicit as you can get in the language of the day.

Privacy is the social boundary that the citizens agree shall not be crossed. Closed doors shall be knocked upon; locked or not. Skirts shall not be looked up, short or long. Envelopes shall not be opened, unless addressed to you. Diaries shall not be read except by explicit permission from the author. These things are all important cornerstones of how society works. Not a one of them carries the addendum “unless it is easy” because it is obvious to each and every one of us that the existence of such boundaries is what makes life as an individual reasonable.

To the extent that the government argues that “because it can”, it should be allowed to, we are faced with an intrusion that is both antisocial and constitutionally wrongheaded, as well as, I would argue, constitutionally anticipated and explicitly forbidden.