Papers & Effects

Constitution - We

"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."

- US Constitution, 4th Amendment


Observe what was intended by those who wrote the Constitution's Bill of Rights, in response to requests for rights protections from the states when the states were asked to ratify the Constitution as originally drafted. Personal liberty and privacy protection. Keep government out of the business of the people. Citizens have a reasonable expectation to a right to privacy, "the right to be let alone", "the right most valued by civilized men", as Justice Louis Brandeis described in 1928 while dissenting in Olmstead v United States 277 US 438. It took decades before other judges caught up with Brandeis' thinking about this issue, and until the Constitution's 4th Amendment protections were reasonably respected and protected by the Court.

The right to be let alone. There is an exception that allows government to maintain civil society when the "searches, and seizures" are justified because the search or seizure can be established as required to maintain civil society in advance of the "searches, and seizures" by soliciting a warrant, "supported by oath or affirmation, and particularly describing the place searched, and the persons or things to be seized". That is why warrants exist.

Oath or affirmation. The importance of truth in those oaths or affirmations cannot be overstated, to the point that serious "penalties for perjury" must apply. The risk of damage is so great, that penalties for false "oaths or affirmations" must absolutely be prohibitive.

Now, how literal are we to interpret "papers"? How broadly do courts, protectors of your civil rights, define your "effects"? Does "papers" mean only physical "paper", and does the paper have to be written upon with ink and quill pen, as it would have been when the Constitution was written? Or is that a metaphor for any thoughts one has committed to media outside of one's mind? Does the Constitution's language include everything one has recorded by other means, such as by a typewriter on paper, or by a keyboard used to type a digital document stored within a computer, all of which might be stored in one's home or other possession? Does "papers, and effects" include an exchange of messages sent by a digital device with another person where there is a reasonable expectation of privacy?

We have a reasonable expectation of privacy in phone calls from decades-old laws and court rulings on telecommunications and wiretapping. Do those rules, or should those rules, govern modern versions of "telephones", such as text messaging, or "posting" a "private" message on another type of service, digital or otherwise?

It is relevant to observe that there is a quagmire in the contracts, in the "Terms of Service" contained in the "End User License Agreements" (EULA) that govern many digital tools we use today. Usually, using the service requires that one surrender any expectation that what is communicated via the service and subject to the EULA is "your papers and effects", because the EULA identifies that you agree that the messages you post or send 'belongs to the service you are using'. If what you have written belongs to the service, such as a message sent via text or sent via Facebook, is it really still your "papers, and effects"...? Of course, then there is the complexity created by the fact, the fact, that most people never actually read the EULA, so they do not actually "consenting" to something of which they are actually aware and informed. They are just clicking "Agree" to be able to use the service. So, the EULA may not have any validity in establishing that the "papers, and effects" belong to the service and not to the person who actually connected words or other characters and by doing so created meaning in the message. Is the message subsequently "owned" by its creator, or by its warehouse? Because once ownership of the message is established, there follows a question of who is responsible any offense created by the words in an incendiary or defamatory message.

Complexities indeed.

This area of 4th Amendment protection is receiving a lot of scrutiny as more citizens have come to learn what NSA is doing by collecting and archiving every text message and email and purchase transaction and enormous amounts of other digital data as transacted every day by every citizen.

You might say, "Who cares if someone else knows that I exchanged a message of good wishes with my friend who is expecting a child?" And you may not care much about that. But then you also consent to the equivalent of posting on a billboard everything that you have ever communicated, and you can no longer have any expectation of privacy in any other personal or confidential matter. Privacy Lost.

So, where does your "papers, and effects" begin and end? Because that determines what requires a specific warrant, "supported by oath or affirmation, and particularly describing the place searched, and the persons or things to be seized". Everyone observes that warrants must be issued in advance of collecting the information, but that is not what is happening in the digital world today. Complexities indeed.

This is an evolving area of the law, and the law has not kept pace with advancement in technology, nor can it. Our courts must apply clear thinking about these concepts in general terms that can apply in a world where technology advances at a rapid pace.

It is very important that we keep our eye on this element of 4th Amendment protections, and press our courts for the same protections that we expect in every other aspect, lest violations of the 4th Amendment go unchecked just because nobody knows to object.