What the Founders Would Say About Cellphone Surveillance

On Nov. 29, the Supreme Court will hear oral argument in an important case called Carpenter v. United States. Although the question in the case may feel very modern — whether government agents can obtain the location data generated by cellphones without a warrant — history can tell us a lot about how the court should answer that question.

The Fourth Amendment of the U.S. Constitution guarantees 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.” The amendment arose from the Founders’ concern that the newly constituted federal government would try to expand its powers and undermine rights that were guaranteed to Americans by the common law and their state constitutions. Based on experience, they knew that equipping government officers with unfettered discretion to search and seize would be a formidable means of oppressing “the people.”

Prior to the American Revolution, British subjects in the colonies and in England had lived with threats posed by “general warrants.” Unlike contemporary search warrants — which require probable cause, judicial approval, and limits on the place to be searched and the things to be seized — general warrants gave government agents license to search wherever they pleased, no matter their reasons, with impunity. And because the king’s ministers could issue general warrants on their own authority, these devices also opened the door to unchecked executive power.

This, of course, was a recipe for abuse.

Under the authority of general warrants, the king’s agents used the power to search and seize as a tool of oppression, targeting disfavored religious minorities and political opponents, such as those who published pamphlets criticizing the government. Some even used their powers to settle personal vendettas. In a series of mid-18th-century cases, courts in England put a stop to this madness, holding that general warrants violated basic principles of English law and were therefore unreasonable. These courts stressed that the very existence of general warrants made everyone vulnerable to the threat of unreasonable searches and seizures.

For example, one influential decision condemned general warrants as “totally subversive of the liberty of the subject” because they gave officers “a discretionary power … to search wherever their suspicions may chance to fall.” Another warned that “the secret cabinets and bureaus of every subject in this kingdom will be thrown open” if general warrants were not forbidden.

Across the Atlantic, James Otis, the Boston lawyer who popularized the slogan “taxation without representation is tyranny,” denounced general warrants, which British authorities were increasingly using to find smuggled goods on which taxes had not been paid. In a legendary speech, he derided them as “the worst instrument of arbitrary power,” which placed “the liberty of every man in the hands of every petty officer.” John Adams later called Otis’s speech “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

The Founders recognized that giving the state arbitrary search power harms “the people” in ways that go beyond the indignity of specific trespasses.

After splitting from Britain, many states adopted constitutions that guarded against oppressive searches and seizures, and the Fourth Amendment was later modeled on those protections. Read in this historical context, the Fourth Amendment is aimed at denying executive agents the unfettered discretion to conduct searches because of the pervasive insecurity that such discretion creates and the abuses of power it enables.

This history lesson is significant because it lights the way in the Carpenter case, where the Supreme Court will be considering the Fourth Amendment’s application to “cell site location information.” This is data generated and stored by our cellular service providers as our phones communicate with the providers’ networks of cell towers. It shows where we are most of the time, recording our locations and movements going back months and even years.

According to the federal government, nothing in the Constitution prevents its agents from exploiting cell site location information as they see fit and tracking the whereabouts of anyone or everyone. This is disconcerting. In a friend-of-the-court brief filed with other scholars, we argue that it is also contrary to the text and original meaning of the Fourth Amendment.

This may sound odd since there were no cellphones in 1791 when the Fourth Amendment was ratified. In that pre-digital world, searches usually involved physical intrusions, like seizing papers from a home. Today, law enforcement can track where you have been simply by getting location records from your cellular provider. But the word “search,” then as now, was not limited to trespassing on private property. It meant to “examine,” “look through,” or “try to find,” which clearly includes examining location records to find a person.

And the Founders recognized that giving the state arbitrary search power harms “the people” in ways that go beyond the indignity of specific trespasses. As the Supreme Court explained in its first major decision interpreting the Fourth Amendment, “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense,” but rather “the invasion of his indefeasible right of personal security” and the state’s unjustified encroachment into the “privacies of life.”

The same dangers of unfettered government power arise when officers can freely track people’s movements by looking through cell site location records. As the court noted recently in Riley v. California, cellphones are essential to modern life. Most of us carry one with us all the time, generating a continuous digital trail of our whereabouts that can reveal intimate relationships, medical conditions, religious practices, political activities, and more. Allowing the government unfettered access to that information would be tantamount to licensing the 24-hour surveillance of everyone. The possibility of such broad and indiscriminate tracking clearly jeopardizes the security of the people against unreasonable searches and seizures. Undoubtedly, therefore, government access to cell site location information must be regulated by the Fourth Amendment.

Significantly, cellphones are only the tip of the iceberg. A new generation of “smart” consumer products, along with the spread of ever-cheaper surveillance technologies, now enables increasingly broad and invasive searches. At stake in Carpenter is the government’s capacity to freely exploit these new technologies to monitor and control “the people” in ways that Justice Sonia Sotomayor has described as “inimical to democratic society.”

This looming dystopia is not inevitable. The Fourth Amendment guarantees protection against precisely such threats. As “the people,” that security is our birthright.

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Anonymous

One partial check & balance to minimize abuses would to give officials extra oversight over time - as long as there is a permanent paper-trail of the searches and stalking by officials that can be obtained under a subpoena.

For example: require a judicial warrant for all stalking and searching but if any surveillance extends beyond a few months or years require additional oversight by the courts.

It should be calculated on the actual abuse the "target" endures - not the investigators - to minimize cheating by investigators. For example: a police officer couldn't stalk someone by cell-phone for a year then hand it off to a fire marshal, game warden, school bus driver or other investigator to subvert the law.

Today we have post-9/11 Americans that were blacklisted without any evidence of wrongdoing and officials simply manufacture a criminal conspiracy to deprive Americans of their constitutional right to be left alone.

Today innocent Americans harassed and defamed for over 16 years vitally need this paper-trail of illegal surveillance and cell-phone stalking to hold these officials accountable. Many of these innocent Americans have been blacklisted decades before 9/11 then more heavily abused after 2001.

Anonymous

If surveillance and domestic spying programs were legitimate, there would be a conviction rate of 40% to 60% - in relation to the number of searches.

In other words if you had over a 1 million persons on various watchlists - based on the government's own records - there would be a conviction rate of 400,000 to 600,000 if there were only one warrantless-search per person. Some of these individuals have had over 5,000 warrantless-searches each since 2001.

When you have a search-to-conviction rate of less than 1/10 of 1% - which the government admits to - that means 99% of the people being searched are innocent and being harmed.

Warrantless spying is neither harmless nor passive, it usually results in premature death after being harassed by authorities for more than 6,000 days as of 2017.

Americans used to value individual freedom and were repulsed by fraudulent government programs that punished innocent citizens. Where is the outrage?

Anonymous

Former Qwest CEO, Joseph Nacchio, claimed in The Washington Post that the Bush Administration was spying illegally in the WINTER of 2001, more than six months before 9/11 - which was a felony crime according to federal law.

Anonymous

I am a survivor that is in a small town politics situation. The police saw a single girl no friends around and known as a free spirit eccentric personality type. Long story short i was on surveillance in a nig highly messed up way where the police assulted me 4 days straight threatening me undercover and suited to plead guilty to a burglary down the street they let me know often drivong me mad they could see le threw the phone my tv i dis55days in jail and well over my good behavior probation and now this is the 4th time they throwing me back in jail for doing nothing. No lawyers in this town will talk to me or call me back a out of state on told me to keep fighting but the are stalking me bad all over again since 2015. My lawyer dusnt want to hear my side just said plead guilty cops said i better now i have felony and the people that know me know this is way out if my character to commit a burglary. Im scared w the threats i need a civil rights attorney cuz its happening to more women like me. This night mare neess to end people that are unaffected by this life rape need to take a sztand and help us no one will contact me and everu lawyer here is to scared to tpuch me.that is exactly what it is constant staight of paranoia and trust issues that it vould ve anybody anywhere they watch u long enough and learn about u very well then they are your next attacker. Please someone that reads this im probably gonna be in danger for writing it but i ran out f***** to give. I didmy time for someone elses cre and that was a set up every law enforcement here is connected advice...

Anonymous

Also what's different in 2017, it's nearly impossible to exist without a cell-phone or smart-phone. It's vital technology as an employee, business owner, job applicant or any other reason.

In other words users aren't "voluntarily" handing over information to a Third Party - one cannot make an income and livelihood without cell-phones and computers.

The ACLU could also argue that under Webster's definition of "government" telecommunications companies and social media are "quasi-governmental" organizations. It's almost impossible to receive analog network TV channels with only an antenna without going through one of these companies.

For example: Facebook once censored the ACLU's FB page for displaying a non-pornographic nude statue. At that time Facebook had no clear guidelines on user content. So users couldn't comply with the rules even if they wanted to.

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