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Orin Kerr's Fourth Amendment & The Internet: Foundations

Orin Kerr, of the Volokh Conspiracy — never trust anyone involved in a conspiracy — has just published an article for the Stanford Law Reviewabout the Internet and the Fourth Amendment. The article has been discussed by Scott Greenfield, Jeff Gamso, and “Publius”; the last name is a pseudonym “for any contributor [to Affirmative Links] who wishes to use the name.” This time, Publius appears to be Jamie Spencer from Austin Criminal Defense Lawyer; he has written on this issue before.

I’m jumping into the fray because I’ve written a time or two about that quaint, ancient relic known as the Fourth Amendment myself.

Kerr’s article doesn’t really change the fact that nobody believes in the Fourth Amendment anymore. He as much as admits that when he says, “Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world.”

My original intent when I sat down to write this article was to explain my disagreement with Kerr’s approach. As I began to write the set-up, I realized the set-up itself was taking on the dimensions of an article of its own. I don’t want to leave out the set-up, nor do I want to risk that people will avoid what I have to say because the article is too long.

Therefore I intend more than one article addressing Kerr’s proposal, with this one being concerned with foundational issues I think are important to any such discussion.

Fifty-Four Words

Kerr’s article is painful to read, not just because of the amazing redundancy — he apparently adheres to the belief that if you repeat the same thing often enough, it will become real — but because it proposes the devastation wreaked upon the Fourth Amendment in meatspace be extended to cyberspace. What we ought to be doing is using the problems that technology highlights with Fourth Amendment jurisprudence as an indicator of just why and how to get back to some more natural meaning for the principle enshrined by our Founders in its fifty-four words.

To do that, we need to remember that those fifty-four words were not brought forth in a vacuum; they were born of concerns over potential flaws in the then-newly-adopted United States Constitution. Concomitantly, it would behoove us to recall why the original Constitution was itself written.

When we consider these two issues, what we find is a common purpose: the limitation of government so as not to limit individual liberty any more than absolutely necessary.

Those fifty-four words, by the way, state:

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. (U.S. Const., amend. iv.)

The Purpose of the United States Constitution

The Constitution of the United States grew out of the recognition of a necessary fact of life. Some people have referred to it as “a necessary evil” — I think I may have even done that a time or two myself — but that’s not entirely accurate. A government, in and of itself, while necessary, is not evil. It is merely an institution, like other institutions, which is constituted by human beings.

Human beings have unfortunate tendencies to look after their own interests, sometimes to the detriment of others. When people begin to live near enough to one another to have regular contact, this can become problematic. People in that situation are subject to the unfair deprivation of life, liberty, and the pursuit of happiness caused by those individuals, or groups of individuals, who are inadequately concerned about the impact of the pursuit of their interests upon the interests of others. This “threat” to the individual can come both from those in the immediate vicinity, as well as those who come from further away.

The Founders of our government — the United States government — believed that the best way to deal with both the internal and external threats to individual liberty within the geographical area they claimed as their own was to make an agreement to establish an institution with just enough power to protect these basic individual liberties.

And no more.

The little-read preamble to the little-read document they wrote which constituted that institution states:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This Preamble to the United States Constitution explains why the United States was constituted, or set up. The rest of the document explained howthe United States was set up. It determined the basics as to the parts, or branches, of the United States government, as well as (again, the basics of) how those parts were to operate and what powers each had.

Additionally, the State governments would continue to exist and these were intended to serve as a further limitation — creating more inefficiency — on any national government.

Inefficient Government: An Insurance Policy for Freedom

Today it is not at all uncommon to complain about how “inefficient” the United States government is. Contrary to what some would have us think, this is not a design flaw.

The government was supposed to be inefficient. Our Founders believed that the best way to achieve the purpose of the constitution — note the use of a lowercase “c” — of what they believed to be the best type of government was to divide the power of government amongst various “branches” and then to pit the branches against one another in such a way that no single branch could govern alone; each branch had to work in some kind of harmony with the other. Since no single individual — and likely no single group — could gain control of all three branches of government, this was felt to be the safest way to create a beast necessary to protect individual liberties without allowing the beast to become more powerful than those it protected. This created the system we’ve come to call “checks and balances.”

Constitutional Purpose: The Limitation of Government and the Protection of Individual Liberties

In short, the United States government was intended to be the Guardian of individual liberties, our Protector. Despite the unfortunately unexplicated phrase “promote the general Welfare” in the preamble to the Constitution, the United States government was meant to do nothing more than keep one individual, group, or, in the case of potential invasion from outside, country or group of countries, from nullifying our individual freedoms. In fact, it was this strong sense of individualism that nearly prevented the United States from coming into existence at all.

Too many of us today have done exactly what the Founders feared: we have forgotten the purpose of the Constitution.

That’s the purpose of a constitution — to limit the powers of a government so that it does not abuse its monopoly over the use of force and possibly even make the situation worse than if there had been no government at all. (Jacob G. Hornsberger, “Liberty and the Constitution” (August 2001) Freedom Daily/The Future of Freedom Foundation.)

Fear & Further Limitations of the Beast

The fear of government was not shared by all the Founders, just as fear of government is not shared by all Americans today. Those promoting the constitution (small “c”) of the United States believed, or at least said they believed, that the Constitution (big “C”) of the United States was worded in such a way as to make fears that the government itself could become a problem for individual liberty unfounded. Many of the promoters of the Constitution repeatedly argued that the form of government it established was a limited government, with limited powers:

While the Framers could not anticipate the tremendous growth that this nation has experienced since its founding, they did anticipate that a government that exists by the authority of the governed must be limited in its power over the citizenry lest it cease to be a government of the people but one that dictates to and controls the people. Each Branch of the Federal Government has specific Constitutional responsibilities that are outlined for that Branch. (Ken Taylor, “The Constitution Part XI: Limited Government” in The Constitution Series.)

Despite reassurances from those promoting the Constitution that no government established by that Constitution could become powerful enough to trample the rights of the very People who established it, enough people in what we call “the original 13 Colonies” shared a fear of government. In fact, so many people feared this that another fear developed amongst those promoting the Constitution: the United States might never come to be; the Constitution might not be ratified.

So a compromise was put forth. In addition to the limitations that already existed within the Constitution, certain basic rights were enshrined in a series of “Amendments” to the Constitution. The idea was to placate those prescient American settlers by ensuring that no matter how powerful the government became and no matter how it tried to shake off the limitations of the original Constitution, it would be explicitly forbidden from trampling the most basic of rights, the fundamental individual liberties necessary to build and maintain a vibrant, thriving, freedom-loving Republic.

With the promise that a “Bill of Rights” would be adopted, the United States Constitution was finally ratified by enough States that it went into effect. The date was March 4, 1789. In September of that year, the 1st Congress proposed a Bill of Rights which was eventually ratified by enough States to go into effect on December 15, 1791.

Lost Moorings: An Initial Complaint on Kerr’s Proposal

My first — but certainly not my last — beef with Kerr’s article is that it is completely unleashed from this original mooring. Kerr begins his article by stating:

The method of this Article is premised on an assumption I call “technology neutrality.” Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world. (Orin Kerr, “Applying the Fourth Amendment to the Internet: A General Approach” (2010) 62 Stan.L.Rev. 1005, 1007 (available here).)

The idea is to “map the protections of the Fourth Amendment from physical space to cyberspace.” (Kerr, supra, 62 Stan.L.Rev. at 1007.) The rationale behind this is not explained; it is, as Kerr says, assumed.

This assumption, however, is wrong for at least three reasons. First, it assumes that the Fourth Amendment has been correctly applied in the so-called “real world,” or meatspace. Second, Kerr’s assumption presumes that a mapping of whatever “protections” may still exist in meatspace can be adequately mapped to cyberspace. Third, Kerr believes that it makes sense to do these things, or at least that doing so isn’t nonsense. None of these views is correct.

As I said above, the set-up to reach this point has taken longer than I anticipated. I felt it was important to lay the groundwork for my objections before moving on to my objections. Thus, my reaction to Kerr’s article is broken down into what I expect will be at least two (and perhaps three) parts.

Ultimately, the problem with keeping the Constitution — and thus the Fourth Amendment — alive today is not to extend some near-dead version of it to what is believed to be another new and necessary arena of governmental intrusion into the lives of the citizens whose liberties it was formed to protect, but to recognize that the damn thing is barely holding onto life as it is, and to revitalize it.

Kerr’s suggested approach fails to recognize this. Kerr’s constitutional amnesia assumes there is nothing wrong with the destruction of the Fourth Amendment — in fact, he does not even recognize it has been destroyed. Instead, he ratifies its wounds and suggests furthering the damage by extending its lack of protection to a new arena.

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