The 4th Amendment’s Secret History
“For me, in terms of personal satisfaction, the mission’s already accomplished … I already won.”
—Edward Snowden
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Among all the secrets that Fourth Amendment crusader Edward Snowden, the former NSA contractor who decided that his employer was peeking into too many of our private phone calls and (for all we know now) impenetrable Snapchats, you’d think he might have come across this one: Never say “mission accomplished” when you want to declare that your mission is actually accomplished. That particular phrase, although perfectly serviceable once upon a time—which is to say, prior to President Bush’s declaration aboard the USS Abraham Lincoln in 2003—has now taken on the Orwellian meaning of implying the exact opposite: The mission is still very much not accomplished.
I get what he’s aiming at. Snowden stood up for—or rather, fled to China and Russia for—the virtues of Fourth Amendment, he’s now bathing in the adoration of a growing wave of defenders. No less than the New York Times has called for clemency on his behalf, insisting that he has “done his country a great service.” One suspects Snowden would take a victory lap, if the Justice Department weren’t inclined to trip him half-way round and bring him in to face charges of espionage.
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I don’t begrudge Snowden his strategy: Declare victory before the game is over, and hope no one notices. And I guess I’m happy for him that he’s “personally satisfied,” although I pray that was never the goal. But whether he has truly struck a blow against those who would invade our privacy is, well, a mission not so obviously accomplished.
He clearly has private industry running scared. This week, Apple announced it hasn’t—wouldn’t ever, no sir—participate with the NSA’s so-called DROPOUT JEEP, which is either a “backdoor” data mining operation or a totally cool driving simulation App that my 11-year-old niece has already downloaded on my iPhone. (Perhaps both.) Whether Apple was complicit in invading our privacy was a legitimate concern—after all, who knows what lies within those thousand-page, once-every-four-minutes iTunes terms of service contracts. (At this point, I’m pretty sure at least half of the Angry Birds know my ATM code.) And earlier, Facebook, Google, and Twitter all criticized the NSA over its PRISM program. No surprise there either: These companies rely on our willing surrender of all the most intimate details of our lives; the last thing they want is for us to think that they somehow invade our privacy.
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But whether Snowden accomplished his mission of breathing new life into the Fourth Amendment is less clear. True, a U.S. district judge ruled last week that the NSA’s mass collection of phone data “almost certainly” violates the Constitution. But is saying it “almost certainly” violates the Constitution far less than saying it is unconstitutional?
Almost certainly.
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We’ll have to see what Justice Roberts & Co. say about that, likely at some point in late 2127.
Meantime, we’re in the thick of it. We don’t know how much the government knows, how exactly it has come to know it, and whether it’s constitutionally authorized to have culled that knowledge.
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Nor do we know whom to blame. As to how we got into this mess, there are a number of obvious suspects. There’s Snowden, at once both bold (some might say brazen) bushwhacker and a clear narcissist. There’s the NSA, at once both a protector of our freedoms and freedom’s bogeyman.
But has anyone considered a third culprit? I’m not a constitutional expert, but I have spent years devoted to the craft of pretending to be one—my way of doing the country a great service, as I’m sure the Times will see someday—and in that careful study I’ve identified one of the unseen but fundamental threats to the Fourth Amendment:
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The Fourth Amendment itself.
It just ain’t what it’s cracked up to be. What began as an attempt to reinforce an inviolate principle adopted from the regal English—a home is a man’s castle, not to be breached—has, over the centuries, become a rather impotent collection of 54 words that lower the drawbridge over most of our lives. How did this happen?
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First off, it’s not even the Fourth Amendment we were supposed to have.
When James Madison penned the version of the amendment he intended to send to the states for ratification, he entrusted the errand of forwarding it to the Senate to a man named Egbert Benson, the New York attorney general. Madison’s version was straightforward enough: “The rights of the people to be secured from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause support by oath affirmation.” Simple enough: There shall be no searches without a warrant. But Benson wanted to limit the number of warrants entirely, so when no one was looking he slipped his own language into the amendment: “and no warrants shall be issued, but upon probable cause.” Benson intended to bolster the Fourth Amendment; instead, he invoked the possibility that probable cause is only required when a warrant is involved.
Oops.
Since that day of its adoption, the Fourth Amendment has needed all the help it can get—and often didn’t get the help it needed. It took a blow in the very first wiretapping case—1928’s Olmstead v. United States—when the Supreme Court ruled that the Amendment’s protections “cannot be extended and expanded to include telephone wires reaching to the whole world.” (To say nothing of wi-fi.)
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In Griswold v. Connecticut, a 1965 Supreme Court case—and my least favorite of all the National Lampoon’s Vacation movies—Justice William O. Douglas dismissed the Fourth Amendment, and only found a constitutional guarantee of privacy in the vague “penumbras” and “emanations” of the other constitutional protections. Though he couldn’t say which. (One might say he emanated them right out of his penumbra.)
Over the years, the Court has even carved out official exceptions to the Fourth Amendment, including the “reasonable person test,” which declares that our privacy can only be violated if a reasonable person could have expected privacy at that moment; and the “special needs doctrine,” which establishes that the Fourth Amendment is sacrosanct and inviolable unless—get this—the government really, really, really needs it not to be. (Wait, they can do that?)
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In 2008, a young man running for president wrote of the Fourth Amendment, “The constitutional text provides us with the general principle that we aren’t subject to unreasonable searches by the government.” But even way back then he knew the Fourth Amendment wasn’t much to hang on. “It can’t tell us,” he admitted, “the Founders’ specific views on the reasonableness of an NSA computer data-mining operation.” (That’s for sure. In Madison’s specific view, we would have had a different Fourth Amendment to begin with.) A few years later, that man, now president, is questioning the absolute protections of the Fourth Amendment by appealing the recent ruling against the NSA and by charging whistleblowers with espionage.
I’m not saying it’s the Fourth Amendment’s fault. (At least, not while they’re listening in.) We the people ratified it, after all. And over the decades, we’ve become more complicit in the erosion of our own privacy. We tweet. We post. In some states, we give prospective employers our Facebook passwords. At the airport, we let TSA employees pat us down at will. (And they charge us a baggage handling fee?) In short, we give away the keys to our castle. And when we feel threatened, most of breathe easier knowing the NSA is trying to connect the dots, secretly and in the shadows.
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But as a famous man once said, “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” (It was either Franklin or Jefferson. I’d Google it, but then the NSA would know just how ignorant I am.)
Hard to say if we’ve “given up.” I can think of at least one expatriot who is pretty pleased—“personally satisfied,” in fact—with the job he’s done. But if we’re hoping to send mixed messages—from we the people, and from our Fourth Amendment—about just how much of our privacy should be invaded, it’s no secret just where we stand: mission accomplished.
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