Fourth Amendment Archives

Well-worn library and member cards

One of the troubling aspects of modern life is how much data about us is stored in various computer data centers. Shopping at my local grocery, I use my shopper card to receive discounts on groceries and fuel while providing the grocer a whole profile of my shopping habits that allows them to customize coupons to my shopping tastes. Every online vendor collects similar data and cookies on our computers track our browsing habits. Health records are maintained on a number of sites. My cell provider has data on all my phone activity and even where I make calls from and where I am (or my phone is) at any given moment. A quick Google search of my address provides information of the appraised value of my home, how many bedrooms and bathrooms we have, and how much I pay in property tax. And this blog and other social media sites provide a substantial amount of information about me. Much of this is done with my knowledge and consent (whether I’ve read those disclosures or not). And most of the time I don’t trouble myself that much, except when this information is compromised by hackers, which seems to happen with disconcerting frequency.

What the Edward Snowden affair made clear is how much of our information is vacuumed up unbeknownst to us through NSA monitoring. The reality is that we probably should assume that very little of what we do, and nothing of our online lives, is private. What may not have occurred to us is that even our bookstore and library searches, if tied to an account (a library card or shopping card, for example, or our name) are also subject to search and seizure without our knowledge under the Patriot Act. Under current laws, according to an article in The Nation, federal authorities may seize any “tangible” thing considered relevant to a terrorism investigation and workers are under gag orders not to disclose these seizures.

What librarians facing this issue have done are to post warnings of patrons that their library internet activity and searches may be monitored. Some have gone so far as to pro-actively destroy wait-lists, caches, and other records. One librarian quoted in The Nation article commented that “It used to be a librarian would be pictured with a book…. Now it is a librarian with a shredder.”

Section 215 of the Patriot Act that permits these kinds of seizures is due to expire on June 1. According to a Publishers Weekly article a coalition of booksellers, authors, readers, and librarians is pressing for the passage of a USA Freedom Act which would restore some privacy protections. It would not eliminate information requests but limit the scope of requests by requiring individual account information under an individualized standard of suspicion.

My personal opinion? While this is an improvement, it does seem that we have eviscerated the Fourth Amendment that reads:

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.

These searches involve search orders but no warrant issued from a judge’s bench, nor are these orders presented to the person whose records are being searched. It is all done in secrecy. The truth is, as I’ve already stated, we should probably assume that nothing we do on a phone, with a credit or shopping or membership card, or do online or give others permission to store online is private and we can expect that it may be accessed without our knowledge. But to justify warrantless, secret searches as protecting a free and democratic society is to delude ourselves. That ship has sailed.

Something to consider the next time you check out a library book or use your Barnes and Noble card to buy the latest best-seller.

One of the books I am currently reading is Michelle Alexander’s The New Jim Crow. There is much that disturbs me in this book because it shows how far short our justice system falls from our American ideals. One of the most disturbing revelations is the fact that a policeman who pulls me over for a burned out tail light could also subject me to a pat down and search my vehicle. Without a warrant, he or she would supposedly have to ask my consent, but how many of us would assert our right to refuse this without a warrant to officers carrying guns and trained in the use of force? Likewise, in many places I could be stopped and searched while walking merely “on suspicion” at the officer’s discretion. I’ve never had this occur, most likely because of the color of my skin, but it could, and does every day, particularly with African-Americans and Latinos, many of whom have not committed any crime. Much of this has been justified in our “war on drugs”.

The text of the fourth amendment to the US Constitution says:

The searches I described above would seem to violate the plain meaning of this text–that neither person, houses, papers or effects (does this include digital effects) should not be subject to search or seizure without a warrant giving probably cause and delineating what is to be searched and seized.

In recent months, we have also heard of how online and cell phone usage has been monitored. Today, we learned this even extends to our social media use and the networks of people with whom we interact. Repeatedly, this is justified by our “war on terror” and the interests of national security.

The troubling thing is that our elected officials and even the highest court in the land have upheld these various forms of warrant-less search and seizure. While it is true that warrants do still need to be obtained in many cases, we are witnessing a growing intrusion of warrant-less searches and seizures in our lives that are eroding one of our most important rights.

Why are we not more disturbed about this? Perhaps the very ubiquity of these searches in our lives has robbed us of a sense of how our persons and effects have been laid open to examination. Every time I fly, I am subject to x-ray examination that intrusively images my body, having already shed shoes, belts, and anything metal or in my pockets (including government issued identification). My luggage is subject to search. Sure, I have a choice to consent to this but if I refuse consent, I don’t fly.

“But don’t you want to be safe?” someone may ask. Of course, I would say, but if it comes at the cost of living in a heavily surveiled society where rights to my person and property could be revoked arbitrarily at a moment’s notice does not exactly impress me as safe.

Perhaps it is that the more invidious examples of this kind of search rarely affect us (at least that we know of). For me, it is often others not of my race or socio-economic class who are subject to such searches.What troubles me is the growth of state intrusion into private life and state capacity to control our lives. One can easily imagine growing search and seizure being justified as the “war to protect freedom”. We should not presume that because at present the suspension of these fundamental rights seem to have minimal impact upon us and only affect “dangerous” minorities, that we can hope to enjoy those rights in the future.

I’m reminded of Martin Niemoller‘s poem that illustrates why fighting for the rights of any of us are in fact important to all of us:

First they came for the Socialists, and I did not speak out–
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out–
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out–
Because I was not a Jew.

Then they came for me–and there was no one left to speak for me.