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In this digital age, what the heck happened to the Constitution?

Jul 03, 20117 mins
Data and Information SecurityMicrosoftSecurity

In this digital age of surveillance, do you ever wonder what the heck happened to the Constitution? It wasn't written to be temporary or optional. On Independence Day, surely SCOTUS ghosts walk the DOJ halls to see how America is faring on her birthday in balancing justice, technology, surveillance and civil liberties. Here are some of their famous privacy-enhancing rulings.

One of the main privacy issues around the time of the Revolutionary War was the freedom of the people from government intrusion. As we celebrate Independence Day, let’s ponder the clash of technology and civil liberties that We the People face 235 years after the adoption of the Declaration of Independence when we started this nation as rebels and revolutionaries to ascertain our “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” Since then there have been countless kicks to people’s privacy and constitutional rights in the “balance” of security measures. Do you ever wonder what the heck happened to the Constitution? It wasn’t written to be temporary or optional.

On Independence Day, surely the ghosts of the Supreme Court of the United States (SCOTUS) walk the DOJ halls to see how America is faring on her birthday in balancing justice, technology, surveillance and civil liberties. As we await the Supreme Court to weigh in on technology issues like warrantless GPS tracking in regards to the Fourth Amendment, here are privacy-enhancing rulings from individuals much wiser than I will ever be.

One Justice in particular seemed to be far ahead of his time in fighting for freedom of speech and the right to privacy even way back in 1928; he was concerned with how privacy could lose out against “modern” technology being used by the government against the people like during Prohibition times with telephone wiretapping. In the dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States, Brandeis wrote: When the Fourth and Fifth Amendment were adopted, “the form that evil had theretofore taken” included the government forcing a person to incriminate themselves. The government could “secure possession of his papers and other articles incident to his private life-a seizure effected, if need be, by breaking and entry. Protection against such invasion of ‘the sanctities of a man’s home and the privacies of life’ was provided in the Fourth and Fifth Amendments by specific language. . . . But ‘time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Moreover, “in the application of a Constitution, our contemplation cannot be only of what has been but of what may be.” The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. “That places the liberty of every man in the hands of every petty officer” was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed “subversive of all the comforts of society.” Can it be that the Constitution affords no protection against such invasions of individual security? . . .

Furthermore, Justice Brandeis spoke of the government as “the potent, the omnipresent, teacher” which “breeds contempt for law” among the people by example when it refuses to acknowledge privacy.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

Of the same case, Justice Redkin said, “Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals. . . . We are concerned only with the acts of federal agents whose powers are limited and controlled by the Constitution of the United States.”

In Boyd v. United States, what was called “a case that will be remembered as long as civil liberty lives in the United States” Justice Bradley said, “The principles laid down in this opinion affect the very essence of constitutional liberty and security . . . They apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.”

In closing, here are a couple more words of wisdom from U.S. Supreme Court Justices. “The right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution’s protection of privacy,” Harry A. Blackmun, U.S. Supreme Court Associate Justice said. And Justice Louis D. Brandeis stated,”Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Wouldn’t it seem as if these justices might surely be rolling over in their graves now as privacy, the Constitution, and surveillance powers clash?

Happy birthday USA. Be safe, have fun and enjoy Independence Day!

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ms smith

Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.