Part 1 – U.S. National Surveillance and the Fourth Amendment

It is reasonable to think that when James Otis was arguing against Writs of Assistance, he was arguing not only for the protection of private property, but also the information owned by the residences within that property. In essence the general Writs of Assistance sole purpose was to gather data and in that day and age digital information didn’t exist. There have been obvious and nontrivial changes in society since the 18th century, especially as it relates to Information Communication Technologies. Given these nontrivial changes in communication technologies, especially since the Internet gained popularity in the early 1990’s, the fact of the matter is that U.S. households still have a lot of information in them, however exponentially more information lives beyond the walls of their home or office because of increased complexity and ownership of new communications tools and technologies that are accessed through wireless internet and cloud based services.

The essence of James Otis’s arguments against Writs of Assistance was that man owns his information and I would add that in the modern context that essence would include our digital information, regardless of where that information resides or the form it exists in. What allows me to make those assertions are the methods of interpreting the fourth Amendment. In the ‘Social Convention’ and/or the ‘Originalism’ methods it is reasonable to believe that private information, digital or otherwise, is owned regardless of the method. That being said as we have learned about the National Security Letters to communications and technology companies under the FISA courts, we see a secret rule of law and legal process that is outside the public view.

Corporations are not bound by the rules of the U.S. Constitution. Since the majority of citizens’ personal and private information resides on the servers of corporations, the FISA court in its approval of programs like “prism” and the methods of data collection, de-identified data or not, reasonably lends one to assert that the FISA courts are interpreting the Fourth Amendment through a form of the ‘Dynamic Incorporation’ method. Since our data resides on servers owned by someone else, there is no “knock and announce” requirement.

The U.S. Patriot act allows for reasonable examination of business records in the search for terrorists, however because communications and technology corporations have almost the entirety of humanity’s personal and private information, the U.S. National Surveillance State has an effective blanket warrant on the information of all foreign and domestic people. That revelation brings me to make a few conclusions:

  1. Blanket search and seizure warrants and/or procedures are unconstitutional and also conflict with the Universal Declaration of Human Rights.
  2. The U.S. National surveillance programs that house this data are immoral.
  3. The U.S. National Surveillance State can aptly be characterized as Authoritarian

Next post I will provide a conclusion to part 1.

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