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Juan Cole: How Unreasonable Searches of Private Documents Caused the American Revolution
http://www.juancole.com/2013/07/unreasonable-documents-revolution.htmlHow Unreasonable Searches of Private Documents Caused the American Revolution
Published on July 4th, 2013
Written by: Juan Cole
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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.”
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.
MORE[p]
39 replies
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Agree more it is unbelievable
According to you, it is okay for a government to secretly restrict civil liberties and lie to the public as long as it means it will save "many people's lives".
Many people lose their lives each year, because people lose their tempers. Thorazine helps control a person's temper. Therefore you will be just fine if with a government that injects the entire population with regular doses of thorazine in order to reduce the number of folks who lose their tempers and thereby save "many people's lives."
Try reading "This Perfect Day" by Ira levin, and then we'll see if you can compose a cogent argument.
That says it all.
Unless one believes the founders thought that all communications and record keeping technology would stop with the quill? 
