December 3, 2020

Privacy Paradox: The Right under the Fourth Amendment

The American notion of privacy is encompassed in the fourth amendment, spelt out in the Bill of Rights, 1791. There lies no explicit mention of privacy rights under the U.S. constitution but, over two hundred years now, the Supreme Court has expounded on the text of the Fourth Amendment to adjudicate privacy-related matters. Antithetical to the conventional wisdom, such decisions have led to a decline in human protection, in the backdrop of unreasonable searches and seizures, robbing the American citizens of their spirit and development. This devastating truth is reasoned with fact that in the name of history and national security, the Supreme Court through its interpretation has constantly backed the power structures. The PATRIOT Act of 2001, for instance dismantled “the wall between law enforcement officials and intelligence officials, which was -designed to protect citizens against using the secretive foreign intelligence collection process in order to build a criminal case.”[1] While declaring the amendment as a relevant one in protection and scope of privacy rights, the government has in fact projected just the opposite.

The Amendment is, in fact, not instructive in cases pertaining to the privacy of citizens for it advances security rather than seclusion. The first clause of the Amendment states that: “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…,”[2] The jurisprudence of the Amendment is indeed narrow in the sense that the privacy concerns are limited to “persons, houses, papers and effects”[3] only. The Supreme Court, for instance, in Smith v. Marylan[4] (1979) held that: “the Amendment does not hold true of privacy concerns in the phone numbers dialed by an individual.” The decree of Amendment in this sense provides a paradoxical understanding. A person using a telephone “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,”[5] but on the other hand, the privacy is put at stake when an individual dials a number. Further, while a person is subjected to privacy within his/her residential boundaries, the government can carry forward the surveillance through helicopters in the backyards and over the houses.

In his novel ‘1984’[6], George Orwell, furthers the argument about the Amendment being ineffective, by contending that judgment in United States v. Jones[7] about government’s twenty-four-hour locational surveillance, the Court assumed the notion of privacy in a much narrower sense, and that the actions of the government were in fact intrusion of privacy. “It is the principle of “responsibility” that supposedly animates not only the right to have rights but also a particular form of government: modern democracy.”[8] Under modern democracy the state battles for individual’s security from national threats but in this sense overlooks the ardent need of its citizen’s privacy, thereby initiating a battle with the citizens itself.

Given the repetitive incongruousness of the acts of the government it is important to understand whether the acts of surveillance lies under the scope of Amendment. Further, in-order to understand the scope of the amendment, one must look at the historical intent behind the Amendment. The intent behind including the term “unreasonable search and seizure”[9] was the response to colonialists writs of assistance through which the “British agents could search any property they believed might contain contraband goods.”[10] “King George made use of such instrument as it was broad and extremely general in scope.”[11] Being one of the main reasons behind, the American Revolution, promise of privacy till date finds a mention only in theory. In practice though, it remains flimsy. “The prohibition of ‘unreasonable’ government action leaves one wondering what the Framers could have been thinking.”[12] “Like beauty, ‘reasonable’ government action is largely in the eye of the beholder.”[13] Given the historical fact about the misuse of general warrants, framers intended to free America of the same. In the latter half, the Amendment specifies that: “… but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched…”[14] Perhaps, the Framers transferred the issue under common law of trespass to govern ordinary violations of privacy along with certain remedies.

It was, nevertheless ensured to the citizens that no arrests or searches will be made without a “probable cause”[15] but post 2002, “the President of the United States claimed and exercised the power to designate an individual, including an American citizen seized on American soil, an ‘unlawful enemy combatant’-and to imprison him on that basis, without probable cause and with limited if any judicial review.”[16] Further, it was believed that, the telephone taping could not be done without a probable cause by the government but as it turned out the government can and has practiced the same in the past. The government took the defense of authorization from the National Security Agency (NSA) to intercept the phone calls and thereby damaging the core features of the Amendment. The claims about the need of “court-issued warrant, based on probable cause to listen on phone calls” can be easily falsified under the on-going law itself. “In late 2001, when George Bush broke the Foreign Intelligence Surveillance Act (FISA), Court law by authorizing eavesdropping on international calls of America, instead of taking an action against the President, the Congress on a bipartisan basis in 2008 enacted a new law.”[17] The highly diluted new FISA Amendments Act of 2008 (FAA) seeks no warrant hence no probable cause “for eavesdropping on wide array of calls, emails and online chats.”[18] Thus, the intent of the Framers behind setting in place an amendment with historically relevant terms held no importance and the history has very well repeated itself. Those in power yet again misuse the authority and find unconstitutional methods to surpass the ideals within which a society was initially supposed to grow.

The Fourth Amendment is further weakened by the growing technology of the digital age. The new concerns are related to the data stored online and government’s intrusion in cyberspace. Although the defense of the need to monitor terrorist activities by the government is as relevant as ever, the defense is toppled by the several revelations through studies. A study by New American foundations suggest that the American citizens easily give up control of private information with zero promise of security in return. One of the core findings revealed that the practice of metadata collection potentially had a marginal impact on preventing terrorism-related activity. Rather, several major political figures around the world were electronically spied upon. Further the data, thus collected, was reported to be used in planning air strikes in places where wars were already being waged. And this was done so to showcase the supremacy of the American forces.

The Fourth Amendment rights were, thus, put at stake several times in the past and with technology ever evolving, there is no assurance of its pause. What one can understand from this paradoxical situation is that it is not limited to the debate of moral and immoral actions in political sphere alone. The current state of affairs also entails the question of a trustworthy and safe democratic government.

References

Articles and Books

1. Francel, Michael T. “RUBBER-STAMPING: LEGISLATIVE, EXECUTIVE, AND JUDICIAL RESPONSES TO CRITIQUES OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT ONE YEAR AFTER THE 2013 NSA LEAKS.” Administrative Law Review, vol. 66, no. 2, 2014, pp. 409–462.

2. Cane, Lucy. “Arendt on Principles, the Right to Have Rights, and Democracy: Response to Näsström.” Political Theory, vol. 43, no. 2, 2015, pp. 242–248.

3. Orwell, George. 1984. London: Secker and Warburg, 1949.

4. Swindle, Jason. “The History Behind the Fourh Amendment.” Swindle Law Group (2013).

5. Thomas, George C. III. “The Eternally Young Forth Amendment Common Law.” Rutgers Law Review, vol. 65, no. 4, Summer 2013, p. 951-964.

6. Greenwald, Glenn. “Fisa court oversight: a look inside a secret and empty process.” The Guardian (2013): 1-12.

Cases

1. Smith v. Maryland, 442 U.S. 735, 744 (1979).

2. Katz v. United States, 389 U.S. 347, 352 (1967)

3. United States v. Jones, 565 U.S. 400 (2012).

Acts and Amendments

1. U.S. Const. amend. IV.

2. Foreign Intelligence Surveillance Amendments Act,2008

[1] Francel, Michael T. “RUBBER-STAMPING: LEGISLATIVE, EXECUTIVE, AND JUDICIAL RESPONSES TO CRITIQUES OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT ONE YEAR AFTER THE 2013 NSA LEAKS.” Administrative Law Review, vol. 66, no. 2, 2014, pp. 409–462.

[2] U.S. Const. amend. IV.

[3] Id.

[4] Smith v. Maryland, 442 U.S. 735, 744 (1979).

[5] Katz v. United States, 389 U.S. 347, 352 (1967).

[6] Orwell, George. 1984. London: Secker and Warburg, 1949.

[7] United States v. Jones, 565 U.S. 400 (2012).

[8] Cane, Lucy. “Arendt on Principles, the Right to Have Rights, and Democracy: Response to Näsström.” Political Theory, vol. 43, no. 2, 2015, pp. 242–248.

[9] U.S. Const. amend. IV.

[10] Swindle, Jason. “The History Behind the Fourh Amendment.” Swindle Law Group (2013).

[11] Id.

[12] Thomas, George C. III. “The Eternally Young Forth Amendment Common Law.” Rutgers Law Review, vol. 65, no. 4, Summer 2013, p. 951-964.

[13] Id.

[14] U.S. Const. amend. IV.

[15] U.S. Const. amend. IV.

[16] Press Release, White House Office of the Press Sec’y, President Bush: Information Sharing, Patriot Act Vital to Homeland Sec. (Apr. 20, 2004), <www.whitehouse.gov/news/releases/2004/04/20040420-2.html>.

[17] Greenwald, Glenn. “Fisa court oversight: a look inside a secret and empty process.” The Guardian (2013): 1-12.

[18] Foreign Intelligence Surveillance Amendments Act, 2008.

Author Details: Vanshika Tandon (Jindal Global University)

The views of the author are personal only. (if any)

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