Sunday, 4 October 2009

Unwarranted Intrusion: On the Fourth Amendment.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I'm not a great scholar of history, or an expert in American constitutional law - but this last week I discovered the Fourth Amendment - and more sadly, how it is being bent and broken in American today (although I guess I kind of knew that already).

My starting point was Cory Doctorow's piece on Senator Al Franken, reading out the Fourth Amendment and questioning a Department of Justice official whether the Patriot Act provisions for roving wiretaps on unnamed individuals meet the terms of that amendment.  (You can watch the actual exchange on video at the MN Progressive Project).

The moot point here is do you need to name someone to be allowed to tap them - or more to the point to tap the broad spectrum of their friends, relatives and contacts?  This snippet of political theatre highlights how much weight is put on the exact wording of constitutional texts that were written well before the concept of wiretaps was ever thought of.- but texts that in any case establish essential principles.

To get at the spirit of the amendment though we can remember that it was - in part at least - a response to British use of writs of assistance in the 1760s - blanket warrants that gave power to search without needing cause and without even identifying who or where you wanted to search.  Which makes it unsurprising that, alongside the Patriot Act, the FISA Amendment Act - with it's support for warrentless wiretaps - is seen to clearly be in violation of citizens constitutional rights. Attempts to challenge it's constitutional legality have though been blocked (at least for now) because the plaintiffs have no evidence that they are actually being watched...  but as it's a secret government surveillance programme how would you ever know you were under surveillance?!
But that's in America....   we do things differently in Europe right???

EFF on roving wiretaps
Inspector General's report on thousands of abuses of the Patriot act by the FBI
American Civil Liberties Union on FISA Amendment Act
Liberty - death by a thousand cuts

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