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December 9, 2013

"The Third Amendment, Privacy and Mass Surveillance"

I try to avoid too much blogging in this space about police practices and related pre-conviction criminal justice issues.  Nevertheless, I have long been saddened by the fact that, especially after Heller, the Third Amendment to the Constitution never gets the love and attention so often bestowed on its near-by neighbors.  Consequently, I was excited to see, and thus could not resist posting, this notable new piece of Third Amendment scholarship (with the title that titles this post) authored by Steven Friedland.  Here is the abstract:

We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow.

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage.

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain.

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law.

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.

December 9, 2013 at 07:14 PM | Permalink

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Comments

"The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage."

Such an innocent sounding statement but pure B.S., sounds more like someone telling everyone to trust them to use the information wisely, remember it's for your own protection. Their track record so far is pretty dismal and even further lacks the proof that the large sums of money being spent on this tripe is even remotely worth it, so sorry but this is one person that doesn't believe it for one minute.

Posted by: Grady | Dec 9, 2013 7:35:31 PM

The right of privacy-- notions of privacy as aspects of other articulated rights-- finds its roots in various provisions of the Constitution. Keeping the Redcoats out of the farmhouse is one such example of privacy. Redcoats had looking glasses and looked from farmhouse to farmhouse. Now the spies have other devices to look into hearth and home.

Posted by: Liberty1st | Dec 9, 2013 7:57:49 PM

Grady.

Exactly. That is what I came to say. It is 100% pure BS. It is both harmful and unconstuitional. But of course this is one of those things which "everyone knows".

I'm sorry Doug that you are excited by such poor scholarship with such blatantly false premises.

Posted by: Daniel | Dec 9, 2013 9:25:18 PM

I would rather have a quarter horse in my bedroom than quarter a darn Redcoat. I believe that the 3rd Amendment has standing when it comes to NSA wiretapping spies.

Posted by: Liberty1st | Dec 9, 2013 10:48:24 PM

I went to Mass this morning at the Cat O Lic church up the street. There were these guys in there surveilling what we do. I thought that Mass Surveillance had to do with other kinds of masses. I said my Heil Marys and left.

Posted by: Liberty1st | Dec 10, 2013 7:57:48 AM

Pretty thin article -- I'm okay with new glosses on the 3A, but the whole thing was ten pages, and not very convincing at that. For instance, "quartering" suggests to me some sort of permanent occupancy, not searching by the NSA or something. There are some possible implications here -- e.g., if a drone was stationed for some extended period of time over your property -- but the article didn't really do much to help us work thru them. The best part was a few footnotes that referenced other writings.

Posted by: Joe | Dec 10, 2013 1:22:20 PM

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