Since the USAToday story about the NSA warrant-less-wiretaps broke, we’ve been entertained by numerous inflamed public figures and hyperbolic claims to this or that, many of them centered on privacy, and the legality of searching vast stores of “generic” information.
Most of these claims of legal violation come back to Amendment IV of the U. S. Constitution so I thought a little deconstruction of this one paragraph postulate might be useful and enlightening.
Amendment IV:
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.
So, just parsing it out, I get the following:
(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.)
)
)
)Thus, the amendment has two parts:
- The right of the people to be secure against unreasonable searches and seizures of their persons, houses, papers, and effects shall not be violated.
- A warrant secured by extant probable cause and supporting oath or affirmation which particularly describes both the place to be searched and the persons or things to be seized empowers the government to set aside those rights.
This balance, I believe, is generally understood, but what seems to be at issue is the scope of each part and how they balance in their parts.
In the first clause, the key issue is the understanding of persons, house, papers, and effects; then the secondary understanding of secure and unreasonable. In the second clause, the key issue is the understanding of particularity, then the binding of the predicates search and seize to the objects place, person, and thing; and lastly the understanding of the temporal component, that is, probable cause.
- What is meant by person, house, papers, and effects? For simplicity, let us take them in their literal meaning: Person: the singular and sentient being. House: domicile; the place where you sleep, bathe, and reside in idleness or leisure. Papers: personal documents that provide information. Effects: portable property of a personal nature not used in business.
- What is meant by secure? I tend to lean away from safety towards the freedom from fear or doubt when defining secure. Secure then means not having to worry about the possibility; it is the liberty of low defenses because the rules provide the defense. Just as you wouldn’t feel the need to concern yourself that someone may try to impede the travel of your ball at the bowling ally, you wouldn’t feel that you need to concern yourself that you will be subjected to unreasonable searches or seizures of your person, house, papers, or effects.
- What is meant by unreasonable? In this context the meaning seems to be one of excess or unrestraint. I think here restraint is the key; the warrant and the provisions for obtaining the warrant are the restraint against excess. There is an implicit consent that some searches and seizures will take place, but they will be restrained by the necessity to obtain a warrant and constrained by the scope permitted to warrants. This is, once again, the liberty of low defenses. In a world where there is no restraint to the imposition of the state, then significantly higher energy must be devoted to establishing the defense of the person, house, papers, and effects from the incursions of the state but when the state is bound by law, the people may relax their defense and allocate their energies elsewhere.
- What is particularity? This has to do with the specific instance; one of many, but not necessarily unique. Compare it with singularity, which is one of a kind. Both are differentiated from continuity, which is the unbrokenness, or indiscernible whole. Particularity may be referential to space or time. “This one as opposed to that one.”
- What is the relationship between the permitted predicates and their objects? This is the first truly difficult question of the deconstruction, because it matters so much how one answers it. If we say that you may only search places and you may only seize persons and things, then it is a considerable constraint on the scope of the warrant, and forces us to delineate the boundaries between a person and a place in ways that I do not believe have been attempted. It would, for example, open up the opportunity to argue that a person is not a place, and therefore, no search of a person may be permitted by warrant; that is no pat-down searches, no cavity searches, no examination of the inner physiology by invasive or technical means. Similarly, if we say that you may only seize things but not search them, then one might argue that a document may be held but not read, permit DNA to be collected but not sequenced, or weapons to be confiscated but not analyzed. Clearly problematic.
- What is search? In the most literal sense, it is to seek after some thing or person already known to exist with the intention of locating it, or to seek to ascertain whether or not some thing or person exists or does not exist. One searches to find something missing, and to discover something unknown.
- What is seize? To appropriate by force. It is by virtue of the coercive power of the state, established by the monopoly on violence, that a seizure in this context takes place; when the state seizes anything or anyone the unstated menace is that failure to concede will result in threats against the body of the resistor.
- What constitutes probable cause? Of all these questions, I expect this one has the most attention devoted towards it. There is a technical definition in law, and it is certainly debated, just as there is a technical definition in philosophy and it is certainly debated. The literal definition in this context appears to be something like, “evidence of the likelihood that some effect owes its origin to a criminal act of this person or involving this thing or place.” Principally, this indicates a temporal arrangement that prefers ex post facto investigations over more preventative measures. Anecdotally, the willingness to permit some acts of warrant wherein the agent of the state can see clear and present threat to some degree of safety exists, but this is also problematic as it is vulnerable to “slippery slope” arguments.
By this analysis, some problems emerge immediately, (some of which may have been addressed already by precedent).
- Does seizure necessarily imply and grant the right to search? If a warrant is issued only to search a place, then how does the government obtain knowledge of the contents of a thing or person seized without violating the security of the people in their persons, papers, and effects?
- When does the accumulation of person, papers, and effects become affairs? That is, my affairs are not protected from unreasonable searches and seizures, but my affairs are largely the aggregation of the person, papers and effects which do receive that protection.
- Does the temporal nature of probable cause, namely that one must have a postiori knowledge of an act to which one attributes some origin, further limit the meaning of search to a Rumsfeldian that which we know we do not know and further still, only those “known unknowns” that we can attest to under the provisions for issuing warrants (sworn testimony, particularity, etc.)?
Others will emerge as well upon consideration.
Turning to the uproar over the cataloging of telephone calls made domestically, does this sort of act impinge upon Amendment IV?
Are the records of telephone conversations (not the conversations themselves) in the category of person, house, papers, or effects? We may easily dismiss the possibility of person, house, or effects out of hand. Papers, however, is another matter all together. Assuming it is a personal call, and not a business call, one must consider the difference between the postal service logging all items sent to and from your house, and the connection logging done by the telephone company. Telephone calls are, after all, simply correspondence carried via electricity instead of the postman. If it were already a decided matter that the state was permitted to use it’s privileged position as postal monopolist to gather data about the correspondence habits of its citizens, then extending that data collection to another medium of correspondence, say the telephone or electronic mail, is not a large step. If they have not been so empowered, and especially if they have been prohibited, then it is a large step indeed.
And perhaps we were too quick to dismiss the possibility that meta-data about a phone conversation is not an effect. If the record is transferable, then it is both portable and property; if it is from a personal line, then it is surely personal, and quite likely not for business purposes. The telephone companies would argue that they, not the participants of the conversation, own the property rights of the conversation meta-data, but their claims to ownership rights are marginal at best. They have done very little to acquire the data because it simply exists as a consequence of the conversation, thereby weakening a classical ‘sweat of the brow’ claim. In fact, because the conversation itself is sine qua non to the very existence of the meta-data, and the persons engaged in the conversation are sine qua non to the telephone infrastructure, one might be inclined to conclude that the only property rights that the telephone company may assert over the conversation are the medium through which it is conveyed, and that the content, participants, duration, and any other facts pertaining to the conversation are owned not by the facilitator but by those in the conversation. This would, in turn, lead to the possibility that the telephone companies, in both the act of collecting and the act of transferring to the government without warrant, committed acts of theft from those who use their infrastructure.
Of course they would likely appeal to their service contract, though, I daresay no contract should be so powerful as to supersede the Constitution or the supra-constitutional rights associated with the mere existence of a thing, such as identity.