There is no doubt that the Fourth Amendment has been eviscerated in favor of heavy-handed police intrusions that are too often deadly. The Supreme Court has done this. A readable historical summary is here.
Justice William Brennan tried and failed to stop this from happening, making various legal arguments and appeals, sometimes to a right to privacy. I take another approach now. I argue that watering down the Fourth Amendment in favor of police intrusions and limitless government access to personal communications (government spying on its citizens) enables oppression and a totalitarian government. It subjects everyone to possible arrest, fines, seizures, harassment, imprisonment, smears, control and destruction of one’s life and livelihood. It subjects every person to a risk of being extorted by government and turned into an informant. It destroys free speech. It gives the government unlimited control over any individual person. Unlimited domestic spying enables the government to locate and then persecute (or prosecute) people who are breaking its laws. But because many government laws are unjust and create victimless crimes, and because many laws destroy rights, and because the government can pass many restrictive laws that limit speech, making a living, dissent, and other natural freedoms, the capacity of a government to spy on its citizens and collect their communications acts as a lever by which the government enforces its oppressive laws. Government access to personal communications indeed is a tool, a major and indispensable tool, by which government finds people breaking its laws. But since government makes so many bad laws that should be broken, this power of spying enables totalitarianism.
If we go back to the origins of the Fourth Amendment, one root of it is a case in 1765 that “involved pamphleteers charged with seditious libel for criticizing the king’s ministers and, through them, the king himself. In both cases, agents of the king issued a warrant authorizing the ransacking of the pamphleteers’ homes and the seizure of all their books and papers.” This is a specific instance of the more general point I am making. The law against criticizing the king’s ministers removed a free speech right that every libertarian would support. To enforce it and obtain evidence, the king’s agents used a loose warrant procedure. The case vindicated the accused when the warrants were found to be void. The main point is that the king attempted to lever his suppression of dissent by obtaining personal materials from the accused.
We may say that he had no right to them or that the accused had a right to privacy, but this right becomes hard to defend in a number of specific instances that involve electronic communications and third party communications companies. We need not stop trying to establish such legal grounds, but it’s important to understand why we want personal communications to remain personal and not fall into the hands of government officials. And the reason is that they can then use that information against us in enforcing any number of other laws they have passed that are oppressive.
A second historical root of the Fourth Amendment procedures was to prevent writs of assistance: “British customs inspectors seeking to stamp out smuggling in colonial Boston were given blanket search warrants, called writs of assistance, that permitted them to search anyplace where they thought smuggled goods might be. (The writs also allowed the inspectors to compel private citizens to help them carry out the searches—hence the writs’ name.)”
The law being enforced was an anti-smuggling law. Libertarians regard such laws as unjust. To enforce these laws, the customs inspectors were using broad searches and seizures. Again we have a case where invasions of privacy are used to enforce other oppressions.
It’s common knowledge that the Gestapo utilized domestic spying to enforce Hitler’s oppressions against many segments of the German and conquered populations. An article in the non-libertarian or even anti-libertarian Daily Beast (not a libertarian publication) reads
“Chillingly, there can be no question that the Geheime Staatspolizei’s [GESTAPO’s] aura of omniscience was due in no small measure to its special competence in gathering and organizing huge quantities of data on resistance movements, potentially subversive individuals, informers, industrial firms, publications, even other security agencies, and making that information readily accessible to its field agents through an ingeniously contrived system of multi-colored index cards. One shudders to think what the Gestapo might have done with just a handful of the data-mining tools currently employed by the NSA.”
This mentions the NSA in the same breath as the GESTAPO in terms of data collection or spying tools, acknowledging that the NSA has far surpassed prior government efforts to collect the communications of citizens.
Those Americans who claim they do not care because they have done nothing wrong need to know that the government can make them be “in the wrong” by passing a law. The Germans focused on “communists, homosexuals, Slavs, gypsies, the work-shy, and most of all, the Jews”. American law-makers and police have their own groups being persecuted at this time, and they include drug-users, drug-sellers, street people, poorer people, the less-informed, weaker people, black people, and mentally-ill people, among many other categories that include various business activities. Americans also need to know that they unknowingly break many laws already. They need to know that the whims of people in power can easily shift to place them in the crosshairs.
Even if a right to privacy cannot be found or is difficult and controversial to find in libertarian law, preventing the government power to access personal information and communications is a crucial necessity to freedom of the individual. This power is what enables police and government agencies, secretly or not secretly, at all levels, to identify people as “law-breakers” and to enforce penalties upon them. It is to prevent this that a right of privacy as against the government’s domestic spying and acquisition of personal information is critical.
The country is moving in the opposite direction on the basis that more spying is needed to root out terrorists. Justice William Brennan and other champions of strong Fourth Amendment procedures and privacy rights openly acknowledged that living by these protections made the work of locating and prosecuting criminals more difficult. This is a small price to pay for freedom. There really is no other choice.
Insofar as the government is a criminal enterprise itself, which is a fact that goes largely unrecognized by the public, it makes no sense for anyone who is against criminal behavior to want to strengthen the hand of the government by allowing it the powers of domestic spying and unwarranted police powers that routinely invade the rights of Americans coast to coast.
3:52 pm on December 17, 2014
