« WSAU Opinion Blog

OPINION - 4th Amendment, gutted

by Chris Conley

NEWS BLOG (WSAU)  “Your papers” used to mean your letters, journals, and personal writings and documents. In modern times, “your papers” is understood to mean “your communications”. Consider that as you read the 4th Amendment of the U.S. Constitution:

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.

Now consider the two personal-privacy news stories that were in the news this week: First, the Guardian story that Verizon is under court-order to supply all the telephone-data on all of its users. The government has access to everything – phone numbers, time of call, length of call, your location when you made the call – except what was said. Second, The Washington Post reported on the top-secret PRISM program, where your internet-surfing can be monitored by the feds with hush-hush cooperation from big-tech companies like Microsoft, Apple, Yahoo! and Google.

It is impossible to square any of these programs with our 4th Amendment rights.

The feds argue that the data isn’t actually being reviewed, it’s being archived and sifted for patterns and code words. That doesn’t matter. My phone records, the people I email, the web sites I visit… that’s all my “papers” in the modern, electronic world. And the Constitution says that information is private. If the government suspects me of something, the 4th Amendment says the feds need to go into court and swear under oath why they have the need to search or seize my information.

The arguments for increased surveillance are unconvincing. Do we need this tool to fight terrorism? Perhaps. But going into the homes of U.S. citizens and questioning them in the middle of the night would be a useful tool too. The government needs a suspicion first; then they can search. “If you have nothing to hide, you have nothing to fear.” This is also a weak, unsatisfying argument. Me protecting my privacy isn’t reason for suspicion; it’s me exercising my rights.

Mark Levin, our very intelligent nighttime talk host and Constitutional law expert, claims we are living in a post-Constitutional era. He’s right. The Executive Branch (Obama for now, but past and future occupants too) will present a series of court rulings and past-precedents to argue what they’re doing now is completely proper. It isn’t. Read the plain, easy to understand, text of the Constitution. We are, indeed, in post-Constitutional America if the words of our founding document have been so eroded that they no longer mean what they say.

Chris Conley
6/7/13