Georgetown professor of constitutional law wrote yesterday in the Wall Street Journal:
With the NSA’s surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this “metadata” can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of “unreasonable,” akin to the “general warrants” issued by the Crown to authorize searches of Colonial Americans.
David Snyder provides a must-read historical summary at the Electronic Frontier Foundation:
The government’s ongoing violation of fundamental civil liberties would have been very familiar to the men who gathered in 1791 to adopt the Bill of Rights. The Founding Fathers battled an 18th century version of the wholesale surveillance that the government is accused of doing today – an expansive abuse of power by King George II and III that invaded the colonists’ communications .
Using “writs of assistance” [another name for “general warrants”] the King authorized his agents to carry out wide-ranging searches of anyone, anywhere, and anytime regardless of whether they were suspected of a crime. These “hated writs”spurred colonists toward revolution and directly motivated James Madison’s crafting of the Fourth Amendment.
[The U.S. Supreme Court noted in Stanford v. Texas: “Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.” And the Supreme Court said in Marcus v. Search Warrant of Property: “The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.”]
We’ve now come full circle. The president has essentially updated this page from King George’s playbook, engaging in dragnet surveillance of millions of Americans, regardless of whether they are suspected of a crime.
WRITS OF ASSISTANCE
Writs of assistance gave the King’s men – customs officials generally, but not exclusively – carte blanche to search the homes, papers and belongings of anyone. They permitted officials to “enter and go into any House, Warehouse, Shop, Cellar or other Place” to seize contraband goods.Though similar in a very broad sense to search warrants, they bore little resemblance to the modern document. [Neither do the modern spying authorizations by the Fisa court.] They required no judicial oversight or probable cause – the evidence investigators must show before a judge will issue a warrant.
Two events in 1760 led to the writs playing a starring role in the prologue to the American Revolution ….
THE PAXTON CASE
After the king’s death on October 25, 1760, Charles Paxton, the chief customs official in Boston, petitioned for new writs in Massachusetts Superior Court. A group of Boston merchants opposed the writs. James Otis, a prominent local attorney, represented the merchants in court, arguing that the writs were “the worst instance of arbitrary power, the most destructive of English liberty, that was every found in an English law book.” Otis asserted that new writs of assistance would “totally annihilate” the “freedom of one’s house.” The writs, Otis said, placed “the liberty of every man in the hands of every petty officer.”
John Adams, then 26 and recently admitted to the Massachusetts bar, was among those in the courtroom watching Otis’ performance. Adams later wrote that Otis’ argument against the writs “breathed into this nation the breath of life.”
Adams further credited Otis’ oratory with lighting the spark that led to the fire of revolution: “Then and there was the first scene of opposition to the arbitrary claims of Great Britain,” Adams wrote. “Then and there the child Independence was born.
[Adams also wrote of the crowd’s reaction to Otis speech: “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote.]
In 15 years, namely in 1776, he grew to manhood, and declared himself free.”The U.S. Supreme Court in 1886 said the Paxton Case was “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.”
Otis and the merchants lost. The court granted the new writs. But the larger cause of resistance to the Crown’s power had only grown. The Crown continued issuing writs up to the eve of the Revolutionary War, and the writs continued to stoke the colonists’ anger.
THE WILKES CASE
Two years after Otis’s impassioned argument came the case of John Wilkes, an English newspaper publisher whose fight against a general warrant issued by the King made him a hero in both England and the American colonies. Though the entire Wilkes affair played out in England, the colonial press extensively covered it, and for most colonists, John Wilkes became a household name.
Wilkes had criticized the King and other high officials in his newspaper, The North Briton. Officials issued a general warrant commanding authorities “to make strict and diligent search” for the authors, printers and publishers of the offending publication. In the process of their search, officials, broke down at least 20 doors and scores of trunks, and broke hundreds of locks. They dumped thousands of books, charts and manuscripts on the floor. In the end, a single warrant had allowed, in thirty hours’ time, the search of at least five houses and the arrest of 49 people, nearly all of whom were innocent.
The press in England and the American colonies made the case a cause celebre, and the British courts ultimately condemned the general warrant, declaring it “totally subversive of the liberty of the [warrant’s] subject.”
THE FOURTH AMENDMENT
It is “familiar history,” the U.S. Supreme Court noted in Payton v. New York, that “indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils that motivated the framing and adoption of the Fourth Amendment.”
In 1967, the U.S. Supreme Court in Katz v. United States affirmed that the Fourth Amendment’s protection against searches and seizures extends to telephone conversations captured on wiretaps. In recognizing that the principle that the Fourth Amendment prohibits indiscriminate searches regardless of the technology involved, the Court made it plain that advanced technology doesn’t clear the government of the duty to establish probable cause, and to receive a warrant, before rummaging through the private lives of Americans.
Over the past few years our government has argued that the modern exigencies of national security have changed the rules of the game and that the niceties of judicial process simply no longer apply. Madison likely would have rejected this argument, but he wouldn’t have been surprised by it. “Perhaps it is a universal truth,” Madison wrote in a 1798 letter to Thomas Jefferson, “that loss of liberty at home is to be charged against provisions against danger, real or pretended, from abroad.”
(History buffs can read more here.)
The ACLU notes:
It’s clear as day that the NSA’s bulk collection orders, like the one Edward Snowden disclosed from Verizon, violate the principles James Otis laid out in his famous attack against the writs of assistance. These orders are not directed at any one of us, but instead sweep up records about all of our communications, violating both the letter and the spirit of the Fourth Amendment, which clearly states that the government cannot rummage through our personal effects absent specific, probable cause and a sworn affidavit.
As Daniel Ellsberg points out, modern Americans face some affronts to liberty worse than those faced by the Founding Fathers under King George.