Thwarting the government snoops who want to spy on your phone

  • 14 December 2017
  • NormanL
Thwarting the government snoops who want to spy on your phone

The Supreme Court recently heard oral arguments in a privacy rights case that could determine whether the Fourth Amendment protects the data that cell phone companies store about our phone use can be accessed by government investigators.

Writing in the American Thinker, constitutional lawyer Mark Fitzgibbons argues that this information should be protected. That data, he says, qualifies as an "effect" under the Fourth Amendment, reflecting the reality that in the digital age, information is the most important effect we carry with us every day:

Let me offer a perspective of why information should be treated as an effect under original meaning of the Fourth Amendment.

First, the value of the right of security in papers is not merely in the physical piece of paper itself.  In Entick v.Carrington from 1765, English Chief Justice Pratt wrote that “[p]apers are the owner’s goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection.”  The papers at issue in that search were not the sheets being stored waiting for John Entick to print his newspaper, the Monitor.  The seizure of Entick’s papers for inspection was precisely for the information contained in them.  And, can there be any doubt that King Charles I ordered the seizure of Sir Edward Coke’s papers in 1632, delaying publication of the final volumes of his famous Institutes, because of the information contained in them?

The Framers understood that the search and seizure of papers was always about the information; paper was merely the medium of the time.  In other words, the physical piece of paper protected by the right of security has its true value under the Fourth Amendment because of the information on it.  A decent and proper analogy is the First Amendment freedom of the press.  That freedom was about the right to publish and promulgate.  This right was naturally and seamlessly extended to the broadcast media, and was not reserved to print media under the 1791 usage of the term “the press.”

But the Carpenter case is about information.  Can that be considered an “effect?”

Here is a good example of why information should be considered an effect, and even in context of possession by third parties.  In my wallet, I carry a small piece of paper with the code to the door of my business office.  The code is of course a substitute for an office key, which would have been the method of access in 1791.  A key may be carried on one’s person, and would certainly be an effect under anyone’s understanding of original meaning.

The property value of that scrap of paper in my wallet is not the paper itself; the value of that paper is the information.

And there was at least one Founding Father who may have anticipated the value of the information we carry on our phones, tablets, and laptops:

John Adams’s 1780 Massachusetts precursor to the Fourth Amendment used the word “possessions” instead of “effects.” Adams’s version, notes Fourth Amendment scholar William Cuddihy, was the first to use the term “unreasonable,” as in “a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.”

Use of examples such as my door code sometimes don’t perfectly articulate constitutional principles, but it is also true that original meaning of the Constitution can or should apply to today’s technology and media.  Professor Rappaport is a wonderful originalist and his view, which is shared by other originalists, may prevail.  Information, though, is as dear and valuable as any paper or other possession, and seems to be compatible with the original meaning of effect.

Information is, and always has been, power...which makes it both valuable, and a tempting target. Protecting your information from government snoops --whether it's on a scrap of paper, or on your cell phone -- remains a key provision of the Fourth Amendment. The Supreme Court should agree with Mr. Adams...and keep it safe from the state's prying eyes.