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This story first appeared on the TomDispatch website.

Heres a bit of history from another America: the Bill of Rights was designed to protect the people from their government. If the First Amendments right to speak out publicly was the peoples wall of security, then the Fourth Amendments right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.

The Fourth Amendment

A response to British King Georges excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: 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.

In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as unreasonable in our old constitutional world, but no more.

Here, then, are four ways that, in the name of American security and according to our government, the Fourth Amendment no longer really applies to our lives.

The Constitutional Borderline

Begin at Americas borders. Most people believe they are in the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.

Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the border search. The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally reasonable simply by virtue of where they take place. Its a concept with a long history, enumerated by the First Congress in 1789.

Heres the twist in the present era: the definition of border has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.

Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast Constitution-free zone. The border is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the US population. In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitraswhose work focuses on national security issues in general and Edward Snowden in the particularknows firsthand. Since 2006, almost every time Poitras has returned to the US, her plane has been met by government agents and her laptop and phone examined.

There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the US and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them US citizens, were subjected to electronic device searches at the border.

Still, reminding us that its possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: It is not the intent of CBP to subject travelers to unwarranted scrutiny. (emphasis added)

Making It All Constitutional In-House

Heres another example of how definitions have been readjusted to serve the national security states overriding needs: the Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.

Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Andersons home and look for hacked software. Warrants can only be issued on probable cause. The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, a fair probability that contraband or evidence of a crime will be found in a particular place.

A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.

The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isnt doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We dont know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.

Its easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message youve ever sent without a warrant and it wont constitute a search. The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureaus agents dont need warrants to access email in bulk when its pulled directly from Google, Yahoo, Microsoft, or other service providers.

How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoenano court involveddemanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.

Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.

Technology and the Fourth Amendment

Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoovers low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureaus counterintelligence program (COINTELPRO).

But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the US by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.

To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now onlinefrom banking to travel to social media. Where the NSA was once limited to traditional notions of communicationthe written and spoken wordnew possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.

An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.) One of the worlds largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.

With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.

The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single file.

Once you have the whole haystack, theres still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBMs Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.

Tools like NORA and its more sophisticated classified cousins are NSAs solution to one of the last hurdles to knowing nearly everything: the need for human analysts to connect the dots. Skilled analysts take time to train, are prone to human error, andgiven the quickly expanding supply of datawill always be in demand. Automated analysis also offers the NSA other advantages. Software doesnt have a conscience and it cant blow the whistle.

What does all this mean in terms of the Fourth Amendment? Its simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these advances, even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.

On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this weeks ;unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging ones inclusion on the governments no-fly list are unconstitutional, another hopeful sign.)

Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phonecall lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.

In its new decision, however, the court acknowledged that cell phones represent far more than a physical object. The information they hold is a portrait of someones life like whats in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.

Does this matter when talking about the NSAs technological dragnet? Maybe. While the Supreme Courts decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

National Security Disclosures Under HIPPA

While the NSAs electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, heres a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.

Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 to assure that individuals health information is properly protected. You likely signed a HIPPA agreement at your doctors office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this privacy law states: We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities. The text is embedded deep in your health care providers documentation. Look for it.

How does this work? We dont know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.

The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) Thats why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your lifesomething, by the way, that couldnt have less to do with American security or combating terrorism.

Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. Youre right to be afraid, but for goodness sake, dont discuss your fears with your doctor.

How the Unreasonable Becomes Reasonable

At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We dont lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to balance freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to nothing to hide, nothing to fear line.

In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.

Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You wont hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the kings thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.

Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights. To stay on top of important articles like these, sign up to receive the latest updates from TomDispatch.com here.

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4 Ways the Fourth Amendment Wont Protect You Anymore ...

Hidden beneath the controversy stirred up last week by the publication of a book called Fire and Fury, a highly critical insiders view of the Trump White House that the president has not only denounced on national television but also tried to prevent from being published and distributed, are the efforts of the Trump administration and congressional leadership to bypass the Fourth Amendment to the Constitution.

Here is the back story.

After the excesses of the Watergate era, during which the Nixon administration used the FBI and the CIA unlawfully to spy without warrants on the presidents real and imagined domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act. FISA prohibited all domestic surveillance except that which is pursuant to warrants signed by federal judges.

The Fourth Amendment -- which guarantees privacy in our persons, houses, papers and effects -- permits the government to invade that privacy only when a judge has signed a warrant that authorizes surveillance, a search or a seizure. And judges may only issue warrants when they have found probable cause to believe that the government surveillance or invasion of the targets privacy will produce evidence of criminal behavior. The Fourth Amendment further requires that the judicial warrant describe specifically the place to be searched or the person or thing to be seized.

All these requirements are in the amendment so as to prevent any court from issuing general warrants. Before the Constitution, general warrants were issued by British courts that met in secret in London. They were not issued based on probable cause of crime but issued based on the governments wish to invade the privacy of all Americans living in the Colonies to find the more rebellious among them. This was the king and Parliaments version of protecting national security.

General warrants did not describe the place to be searched or the person or thing to be seized. They authorized the bearer -- usually a British soldier physically located in the Colonies -- to search where he wished and seize whatever he found.

FISA did not interfere with the standard understanding or use of the Fourth Amendment by the government and the courts. But it did add another way for the government to invade privacy when its wish is to surveil people for national security purposes -- a return to general warrants -- as opposed to solely gathering evidence of crimes.

The FISA-created procedure, enacted in defiance of the Fourth Amendment -- which makes no distinction between government evidence gathering and government intelligence gathering -- permits a secret court in Washington to issue general warrants based on the governments need to gather intelligence about national security from foreigners among us. It pretends that the standard is probable cause of foreign agency, but this has now morphed into the issuance of general warrants whenever the government wants them.

Since 1977, the Foreign Intelligence Surveillance Court has issued well over 99 percent of the warrants that the government has requested. And these warrants do not specifically describe the place to be searched or the person or thing to be seized. A typical FISC-issued warrant authorizes government surveillance on all landlines, mobile devices and desktop computers in a given area or ZIP code. One infamous FISC-issued search warrant permitted the feds to surveil all Verizon customers in the U.S. -- in excess of 115 million people -- without any evidence of crime or even suspicion about any of them.

Now back to the Trump administrations work below the radar. Even in the fresh aftermath of 9/11, when the governments respect for constitutional norms was at a lamentably low point, the government interpreted the Fourth Amendment as requiring the government to separate its intelligence functions from its law enforcement work. The government recognized that its trigger for mass surveillance -- namely, looking for a foreign agent among the populace -- was a far lower standard than probable cause of crime, which is what the Fourth Amendment requires.

Today, the federal governments computers are permanently connected to the mainframes of all telecoms and computer service providers in America, so the spying is in real time. Today, the federal government employs more than 60,000 domestic spies -- one spy for every 5,500 Americans. Today, if any of them come across evidence of crimes while listening to your telephone calls or reading your texts or emails ostensibly for intelligence purposes, there is little they can do about it.

Until now.

Now, hidden beneath the Fire and Fury controversy is the muffled sound of the Trump administration and Republican congressional leaders plotting the enactment of an addition to FISA that would permit the use of evidence of crimes in federal court even when it is discovered during mass surveillance authorized by general warrants.

If enacted, this radical, unconstitutional hole in the Fourth Amendment would bring the country full circle back to the governments use of general warrants to harass and prosecute -- general warrants so odious to our forebears that they took up arms against the kings soldiers to be rid of them.

I am surprised that President Donald Trump supports this. He has himself been the target of unlawful foreign surveillance and unconstitutional FISC-authorized domestic surveillance. Fire and Fury even quotes former British Prime Minister Tony Blair warning a newly elected Trump about this. And now he wants to unleash upon us all the voracious appetite for surveillance that was unleashed upon him and prosecute us for what is found, the Constitution be damned.

Whatever happened to the public promise to preserve, protect and defend the Constitution as it is written? Thats in the oath all in government have taken. That is the oath that the president and his Republican allies reject.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.

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Judge Andrew Napolitano: Congress plotting to cut a hole in ...

On Wednesday, the Supreme Court will hear Carpenter v. United States, a case experts are calling the most important privacy issue before the court in a generation. At issue, according to SCOTUS blog, is Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Given that nine out of ten adults in America use some kind of cell phone, a number that has increased substantially since even a decade ago, this decision regarding electronic communications and Americans privacy and property rights will be landmark.

Between December 2010 and March 2011, a group of friends in the Detroit area robbed several RadioShack and T-Mobile stores in Michigan and Ohio. Ironically, they chose to steal cell phones (note: if you steal something, dont steal an item that can be tracked). A month after the spree, four of the thieves were arrested, but not the mastermind of the scheme, Timothy Carpenter. A guilty compatriot turned over his phone, and FBI agents reviewed the calls he had made around the time he and his buddies were snatching cell phones.

Because of the Stored Communications Act, a judge granted an order for the FBIs request to obtain transactional records from wireless carriers for multiple phone numbers for [a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones [] as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.] The judge didnt grant a warrant, which would have required probable cause, and which law enforcement did not yet have.

This is where the infamous Carpenter comes in. From the records, law enforcement was able to figure out that one of the thieves had been in touch with Carpenter and, because of which cell phone towers Carpenters phone pinged, that he had been near the robberies. This led to Carpenter being arrested, convicted by a jury, and sentenced to 116 years in prison.

At first, it might not seem like there is an issue at here at all. The rub, however, lies in whether a judge can grant a warrantless search of cell phone records that reveal the phones (and thus users) whereabouts without violating the Fourth Amendment. Recall, the Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.] Without the police search of digital data, its possible Carpenter may never have been linked to the robberies or arrested, or the police would have had to dig up better hard evidence to get him convicted.

As the Washington Post explained, The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the publics content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.

SCOTUS already has a precedent regarding phone communications. In Smith v. Maryland, the court held the government may not eavesdrop on a phone call but could obtain without a warrant the phone numbers the person dialed. In 1986, the Congress passed the Stored Communications Act, which governs the privacy of stored Internet communications.

The government is expected to rely upon these decisions to make its case that the warrantless search of Carpenters calls and cellphones whereabouts did not violate his Fourth Amendment rights. Carpenter will undoubtedly lean heavily on the Fourth Amendment itself and Riley v California to make the case that, as Lawfare said, cell phones have become intertwined into the lives of American citizens and the vast data contained within a persons phone potentially holds the sum of the individuals private life, so the routing data contains much more than the information necessary to get communications from point A to point B.

The juxtaposition between the way the Fourth Amendment is written and how much technology has advanced since those times lies at the heart of legal stickiness here. What constitutes houses, papers, and effects? Are cell phones, the digital data within them, and information retrieved from the cell towers from which that data bounces and databases communications companies keep to provide their services? And what exactly is a search? Must it be physical trespassing, or could it be digital maneuvering through computer search or even a hack?

The late Justice Scalia was famously a Fourth Amendment originalist, as obvious in his dissent in Kyllo v United States, which held in a 54 decision that using thermal imaging was a search and required a warrant. But the advancement of time and technology makes cases like this unusually difficult to interpret. As Lawrence Rosenthal, a law school professor, wrote:

Justice Scalias Fourth Amendment originalism hangs by a thread []Sometimes Justice Scalia himself seemed to acknowledge the difficulty of applying founding-era doctrine to contemporary contexts, as when, in 2014, he joined a unanimous Court in Riley v. California in holding that information in cellphones could not be retrieved without a warrant, despite the traditional rule that permitted police to search an arrestees person and effects incident to arrest.

Several reputable organizations have filed amicus (friend of the court) briefs in favor of Carpenter, including the Cato Institute, the Electronic Frontier Foundation, and the American Civil Liberties Union. They argue digital data is personal property.

Time will tell how the Supreme Court decides.

Original post:
Supreme Court To Hear Key Fourth Amendment Case

Fourth Amendment:Searches and Seizures

What is the Fourth Amendment?

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.

The Fourth Amendment Defined:

Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment

The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.

Court Cases tied into the 4th Amendment

In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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An interesting Fourth Amendment issue has come up in debates over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. This is the authority, some will recall, that allows the government to collect from inside the United States the contents of communications of foreigners reasonably believed to be outside the United States without obtaining a warrant. Heres the question, as I understand it: If a foreigner (a non-United-States person, in the statute) is communicating with a U.S. citizen inside the United States, and the government has collected the communications between them under Section 702 by targeting the foreigner, what are the Fourth Amendment limits on querying the database to find evidence of criminal activity committed implicating the United States person? In other words, after the government has collected the contents under the national security authorities based on the non-U.S. person, what are the limits on switching over to a criminal query that targets the U.S. person?

As I understand the intelligence communitys position, it takes the view that querying the database is always okay because its not an additional Fourth Amendment search. The Fourth Amendment governs collection of the contents of the communications, but not the separate query. From Q&A posted earlier this year:

Querying databases containing Section 702 information does not result in any new acquisition of data; it is instead only an examination or re-examination of previously acquired information. Therefore, those queries are not separate searches for Fourth Amendment purposes. The IC queries its databases to more quickly and efficiently sort and identify communications already lawfully collected, such as information potentially related to a terrorist plot against the United States, without having to sift through each individual communication that has been collected.

I dont find this persuasive. As I understand this, Section 702 raw data has been collected but not yet observed. In Fourth Amendment law, it has been seized but not searched. See Soldal v. Cook County (1992). As a result, the data maintains the Fourth Amendment protection it had before it was copied.

Its true that, after data has been exposed to human observation, it has been searched and Fourth Amendment search rights expire. Once that exposure has happened, the data can be used and reanalyzed in any way the government wants without it being another search. See Illinois v. Andreas (1983). But the mere copying of data without human observation is a seizure but not a search, I think. Thats why courts scrutinize how the government searches images of seized hard drives or the copies of email accounts obtained from service providers. If the data has been copied but not searched, querying it is a search. Or so it seems to me.

Granted, there is a circuit split right now on the private-search reconstruction doctrine that might be relevant. The split concerns how much is searched when a private party sees a file on the hard drive: Is just the exposed data searched, or the file, or even the entire physical storage device? Its fair to assume, although not entirely obvious, that the answer to that also sheds light on what is searched in the government context. But even so, it seems hard to believe that a court would say that observing some files in a massive government database of unsearched contents extinguishes all Fourth Amendment rights in that data.

If Im right about that, then the query through the raw 702 database requires its own Fourth Amendment justification. Im not sure what warrant exception could apply, though. Its a query for criminal investigative purposes, as I understand the hypo, so no national security reasonableness exception could apply. Its targeting the U.S. persons communications, so presumably its outside the reasonableness framework unpersuasively invented by the Ninth Circuit in the Mohamud case. Maybe theres some other way to get around a Fourth Amendment warrant requirement here, but its not clear to me what it is.

Im not saying I have the answers to this question. And maybe I am misunderstanding the question itself. But based on the public discussions I have seen about what is happening, I worry that there is a lot more of Fourth Amendment concern here than the government is acknowledging.

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