The Fourth Amendment prohibits “unreasonable” searches and seizures. The NSA’s collection of data and metadata is unreasonable, not being based on any suspicion of an actual crime. The dissent of Justice Brandeis in Olmstead v United States, 277 U.S. 438 (1928) makes a case for privacy linked to the Fourth Amendment. Here are some pertinent quotations:
“Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding.”
“The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness…They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
The “right to be let alone” is the “right to privacy”. What does it mean to invoke this right “as against the Government”? It means at a minimum what the Fourth Amendment says: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…”
The right to be let alone regards unprovoked and unwarranted intrusions by Government upon one’s exercise of one’s freedom to communicate and travel, which are essential to one’s pursuit of happiness and human life, as fundamentally unreasonable. That is to say, a person really (or reasonably) cannot engage in pursuing his own life with a Government monitoring everything he says or every place he goes or every person he communicates with. It is human nature to resist being followed and spied upon. If someone follows you, you automatically consider that they may be up to no good. The same goes if they case your house or place of business. People even do not want to be stared at. The human being interprets such spying as potentially dangerous, and, in the case of Government, it certainly is, because of Government’s powers to arrest, try and imprison. Big Brother is watching you, but why? To control you. To suppress dissidents. To make you shut up. To scare you into not meeting others.
The Fourth applies to telephone conversations and e-mails. Brandeis recognized that in 1787 physical search and seizure was a major means of Government intrusions and violations of the right to be let alone: “Force and violence were then the only means known to man by which a Government could directly effect self-incrimination. It could compel the individual to testify—a compulsion effected, if need be, by torture. It could secure possession of his papers and other articles incident to his private life—a seizure effected, if need be, by breaking and entry.”
He recognized that modern means differed: “Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”
He asked “Can it be that the Constitution affords no protection against such invasions of individual security?” In my opinion, the language of the Fourth Amendment, especially its reference to securing the person and his “papers” and “effects” is broad enough to apply to those communications that the NSA has undertaken, as well as to those personally-intrusive searches conducted by the TSA.
Brandeis cited a decision that had already unlocked the Fourth’s meaning as applying to telephone calls:
“In Ex parte Jackson, 96 U.S. 727, it was held that a sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. As Judge Rudkin said below: ‘True, the one is visible, the other invisible; the one is tangible, the other intangible; the one is sealed, and the other unsealed, but these are distinctions without a difference.’ The evil incident to invasion of the privacy of the telephone is far greater than that involved in tampering with the mails. Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and, although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him.”
11:31 am on February 11, 2014
