A moment of nostalgia, please, to reflect on the Fourth Amendment.
Once it promised a wall of protection around Americans' privacy. It said quite clearly that law enforcement had to get a warrant from a judge based on probable cause of wrongdoing before snooping on "persons, houses, papers, and effects."
It still says that, but no one acts like it does.
The National Security Agency has been vacuuming up massive amounts of telephone "metadata" on whom we call, when and each call's length. True, the operation was approved by the secret FISA court. But rather than be consistent with the Fourth Amendment, the process recalls the general warrants despised by 18th century Americans and ostensibly eradicated by the amendment's guarantees.
Privacy is under assault by the FBI and dozens of federal agencies that use administrative subpoenas by the thousands, without a judge's approval, to demand all kinds of business records. And police agencies around the country are using license plate recognition systems without warrants to record and store data on everyone driving a car.
These days, the Fourth Amendment doesn't stand for much beyond hoary aspirations.
Law enforcement is not really to blame. It is simply exploiting exclusions to the warrant requirement coupled with supercomputer technology now available. The real culprit is the U.S. Supreme Court, the ultimate guardian of individual rights, whose literalist and hidebound rulings on the Fourth Amendment have allowed for the steady erosion of privacy.
The problem started in the 1970s when the high court adopted a third-party doctrine that contains an inherent conundrum for a society increasingly technologically driven. In the cases United States vs. Miller and Smith vs. Maryland, the court said the government could obtain bank and telephone records, respectively, without implicating the Fourth Amendment. The rationale was that once a person has voluntarily given up information to a third party, the information was exposed to the public and could no longer be expected to be kept private.
There are two distinct elements that make this unworkable. First, it disregards the realities of modern life in which people must trust third parties — medical professionals, financial brokers, Internet service providers, abortion clinics — with an array of private records.
But lower courts are still stuck with the doctrine. Just last month the 5th U.S. Circuit Court of Appeals ruled that no warrant is necessary when the government seeks location records from a cellphone company that can include a detailed history of someone's whereabouts.
Second, the third-party doctrine can lead to the kind of mass surveillance that turns everyone into a potential suspect. With the Obama administration interpreting the Patriot Act to allow for bulk record collection with no principled limitations, we are at the cusp of a Panopticon society, precisely the kind of watched existence the Fourth Amendment was designed to prevent.
Congress is too spooked by national security fears to be any real help in reining in a surveillance state. Rebuilding the Fourth Amendment is only likely to come from the one branch of government insulated from electoral pressures.
But the Supreme Court has yet to develop a new doctrine despite unease over law enforcement's access to invasive technology. In a 2001 case, the Supreme Court rejected the warrantless use of thermal-imaging devices to detect in-home pot growing operations. In 2012, it told police they couldn't attach a GPS device to a car without a warrant.
The Supreme Court should start by stating the obvious: today's electronic records are the functional equivalent of 18th century papers held in one's desk drawer. Then, as recommended by Jay Stanley of the American Civil Liberties Union in an issue brief on the subject, Fourth Amendment doctrine should be rebuilt to protect "the privacy and dignity befitting a free people."
People voluntarily give up ridiculous amounts of personal information to online retailers and social media outlets. Still, as Stanley aptly notes, "Privacy does not mean keeping secrets. Rather, it means having the power to keep them if you wish." Only a revitalized Fourth Amendment that means what it says can do that.