Second of a three-part series Supreme Court Justice Stephen Breyer thinks technology has outpaced freedom. He is certain the Fourth Amendment’s restriction on government intrusion is outdated.
He articulated this view Dec. 12, 2010, when he told Fox News’ Chris Wallace: “The Founders didn’t know that commerce included airplanes. They didn’t know about the Internet or even television. And so the difficult job in open cases where there is no clear answer is to take those values in this document, which all Americans hold, which do not change, and to apply them to a world that is ever changing.”
While it’s true that in 1791, the year the Bill of Rights was ratified, the Internet was nearly two centuries away, this doesn’t give judges the right to ignore the Fourth Amendment protection of our “persons, houses, papers, and effects, against unreasonable searches and seizures.”
The Founders might not have foreseen the Internet, but they did outlaw warrantless invasions of our privacy and foresaw the possibility of a centralized federal government infringing on basic human liberties.
The Obama administration agrees with Justice Breyer. This next term, the U.S. Supreme Court has agreed to hear Obama’s Justice Department argue that law enforcement should be able to affix a GPS device to someone’s vehicle to track their every move without the benefit of a warrant.
Justice Breyer claims “there is no clear answer” to what the Fourth Amendment protects in this world of GPS units, cell phones and Twitter accounts.
The Left argues that we no longer have a “reasonable expectation of privacy” when we’re outside of our homes or on the Internet, so the government shouldn’t be required to get a warrant to watch us, track us, or see our private papers when they are emailed via, for example, a Google account.
While it’s true that today our papers are more often digital (something that was unfathomable in 1776), this doesn’t end their constitutional protections; after all, no one argues the First Amendment protection of free speech ends when our voices go over the Internet or on television.
So how is it that liberals can say the Fourth Amendment’s protection of our “persons, houses, papers, and effects, against unreasonable searches and seizures” doesn’t cover cell phones, computers, digitized documents, and websites?
Just because our “papers” appear on a screen shouldn’t mean the Fourth Amendment doesn’t protect them from warrantless searches. And just because we move about in public shouldn’t mean the government can use a new technology to track us without a warrant.
In 1928 Justice Louis Brandeis prophetically wrote in his dissent in the first Supreme Court wiretapping case (a case that held a wiretap was not a Fourth Amendment search), Olmstead v. United States, that “[d]iscovery and invention have made it possible for the government, with means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the close. … The progress of science in furnishing the government with means of espionage [on American citizens] is not likely to stop with wiretapping. … Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court.”
The age Brandeis prophesied has arrived. Now legislators and the courts need to simply apply the Fourth Amendment as it is written. The Fourth Amendment was certainly written to protect the privacy of our “persons, houses, papers, and effects,” and, like other amendments, those basic protections should translate to new mediums.
Frank Miniter is the executive editor of American Hunter. This is first in a three-part series adapted from “Saving the Bill of Rights: Exposing the Left’s Campaign to Destroy American Exceptionalism” (Regnery, 2011). Reprinted with permission by Regnery Publishing Inc.
