Wake up America-The 4th Amendment is sick

The Fourth Amendment is ailing

and needs our help

it’s not too late

Pay attention, folks. Your rights are slowly being taken away and one day you will wake up to find you are no longer living in a free country.  This is written by Alex Kozinski  the chief judge of the U.S. Court of Appeals for the Ninth Circuit. Stephanie Grace is his law clerk.

fourth amendment is sick

“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”

As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice? Most recently, the smartphone, which, with our collective blessing, allows law enforcement to monitor our real-time geographic location. Although a bill recently proposed by Sen. Ron Wyden, D-Ore., would require police to obtain a warrant before turning our cellphones into tracking devices, such legislation may come too late to save the Fourth Amendment from this fatal blow.

It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos. The problem, at least constitutionally speaking, is that the Fourth Amendment protects only what we reasonably expect to keep private. One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

You would, for example, have a reasonable expectation of privacy for a photograph on your nightstand  meaning the police would need probable cause and a warrant before taking a peek. But you lose that expectation of privacy when you tack the souvenir photo from Foamhenge on the office bulletin board to make co-workers envious.

Letting stores track our purchases may not appear to be permitting an intensely personal revelation but, as the saying goes, you are what you eat, and we inevitably reveal more than we thought. Have diapers in your cart? You probably have a baby. Tofu? Probably a vegetarian. A case of Muscatel a week? An alcoholic (with poor taste, at that). The cards also track the “where” and “when” of our shopping expeditions. Making a late-night run to a convenience store near your ex-girlfriend’s house? Buying posters and markers the day before a political rally? If you swiped your card, all that information is now public.

If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.

These cards were just the beginning. Fast Track passes quickly followed — with their lure of a shorter commute for a little privacy. Then came eBay and Amazon, which save us from retyping our billing and shipping information, if only we create an account. Before long, convenience became paramount, and electronic tracking became the norm. Nowadays, Google not only collects data on what websites we visit but uses its satellites to take pictures of our homes. GPS manufacturer TomTom has collected — and disclosed to law enforcement — data on where people are speeding, so police could catch them in the act. Indeed, if Mexico’s highly anticipated experiment with iris scanners goes well, we may soon be going through airport security, making ATM withdrawals and buying groceries, quite literally, with the blink of an eye.

With so little left private, the Fourth Amendment is all but obsolete. Where police officers once needed a warrant to search your bookshelf for “Atlas Shrugged,” they can now simply ask Amazon.com if you bought it. Where police needed probable cause before seizing your day planner, they can now piece together your whereabouts from your purchases, cellphone data and car’s GPS. Someday soon we’ll realize that we’ve lost everything we once cherished as private. And as we grieve the loss of the Fourth Amendment, we’ll be forced to look deep in our hearts—and at the little pieces of plastic dangling from our keychains — and ask ourselves if it was all worth it. R.I.P.

Thanks to The Daily.

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Posted by on June 23, 2011. Filed under Commentary. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.
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5 Responses to Wake up America-The 4th Amendment is sick

  1. Barton

    June 23, 2011 at 10:42 pm

    Gee we don’t want to make it easier for the police to solve crime and the government to track down terrorists using our most recent technology. What is it you have to hide? I don’t give a crap if the government monitors my activity through my cell phone or my supermarket habits. I’ve nothing to hide. The only people who need to worry are those with something to hide. The constitution is a guide not a free pass to criminality.

    • bsranch

      June 23, 2011 at 11:07 pm

      Barton that is what the people dragged before HUAC in the 50s thought. What about J Edgar Hoover and his FBI files.
      Not everyone in the government has the scrupples you might expect them to. Also, who’s to say it is only the government that is tracking you and what if those government files are compromised.
      I am by no means saying that we should hamper government investigations. But I prefer they ask me for mine.
      I don’t use a smart phone and I hide all the information I can and still get by in this day and age.
      I have several of those store cards but if you ask for one at the checkout and take a application with you. The card is activated when they use it that first time and I just never send in the application. I have cards I have used for years like that. I really don’t need everyone knowing I’m a chocaholic…oops well that cats out of the bag.. better stop.

  2. lazersedge

    June 24, 2011 at 1:45 am

    R.J. I hate to be the one to break it to your but the assault on the fourth amendment has been going on for bit longer than you think. A lot of folks, like your first commenter Barton, tend to think that the government and police would only use the loosening of fourth amendment rights on evil doers. They in their most naive form of blindness have not a clue about what this battle is really about until somehow they are caught up in the misadventures of law enforcement officers. This battle began in the early part of the 20th century and continues to this day. In a notable case Kathryn Johnston, who is reported to be either 88 or 92, was killed by Atlanta police executing a warrant-less search of her home. The search was was based upon an Atlanta narcotics officer’s affidavit that his informant had bought drugs at her house. “But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that “Sam” had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.” In other words the officer lied, and as a result an elderly woman died trying to protect herself and her home and three police officers were wounded.
    There have been similar cases over the years where officers have pushed the issue up to, and beyond, the limits. In some cases intentionally violating the $th Amendment rights, and in most cases making mistakes in judgement. What most people do not stop to consider is that the loss of every inch of freedom for one person,be he good, bad, or in between, loses that same inch for everyone. The Mapp v Ohio case was a classic example, though it was long ago, and its ruling has been chipped away at ever since. Police entered Ms Mapp’s home without a warrant searching for a bomber. Finding no bomber they did find what they considered pornographic magazines in a trunk upstairs. Ms Mapp was arrested and charged with possession of the material. Though the Supreme Court overturned the the conviction Ms Mapp was still jailed for the offense and had to fight this through the courts. Since that time, as I mentioned the government has been chipping away at those rights.
    If one actually conducts a little research he or she will find that the origins of the fourth amendment comes from the practice of British troops taking the liberty of entering the homes of colonists at will searching for evidence of non payment of taxes to the King and carting off the home owner to prison. Reading the amendment tells one the precise meaning behind its writing and passage. For the life of me I do not understand why anyone would say that the police can come into their home any time they want to and search all they want to because they have nothing to hide.Most everyone probably has something that they would just as soon not have everyone in the country know about.

    • dp1053

      June 24, 2011 at 10:13 am

      Lazer, thanks for the comments. I am well aware that the 4th has been chipped away at for quite some time. I just found this interesting as it is a judge’s viewpoint and also because I think regular posting of this info may someday make it dawn on people (like Barton) that you don’t have to be a criminal to be abused by police powers. Maybe if the message is repeated often enough it will soak in.

      • lazersedge

        June 24, 2011 at 11:39 am

        Thanks dp. I hope you are right. There are so many who don’t seem to think about that.