SoylentNews

Arthur T. Knackerbracket writes:

Story automatically generated by StoryBot Version 0.0.1f (Development).

Note: This is the complete story and will need further editing. It may also be covered
by Copyright and thus should be acknowledged and quoted rather than printed in its entirety.

FeedSource: [ArsTechnica] collected from rss-bot logs

Time: 2015-11-28 16:38:38 UTC

Original URL: http://arstechnica.com/tech-policy/2015/11/could-the-third-amendment-be-used-to-fight-the-surveillance-state/ [arstechnica.com]

Title: Could the Third Amendment be used to fight the surveillance state?

Suggested Topics by Probability (Experimental) : 25.0 digiliberty 15.0 science 15.0 hardware 15.0 OS 10.0 security 5.0 techonomics 5.0 technomics 5.0 mobile 5.0 careers

--- --- --- --- --- --- --- Entire Story Below --- --- --- --- --- --- ---
 
 

Could the Third Amendment be used to fight the surveillance state?

The NSA can't capture everything that crosses the Internet—but doesn't need to.

Amongst very nerdy constitutional law circles, the Third Amendment is practically a joke. It’s never been the primary basis [constitutioncenter.org] of a Supreme Court decision, and it only turns up rarely in legal cases. The reality is that the federal government isn’t going to be sending American soldiers to individual homes anytime soon. Even The Onion tackled the issue in 2007: "Third Amendment Rights Group Celebrates Another Successful Year [theonion.com]."

But in a recent op-ed in the Los Angeles Times [latimes.com], one California state lawmaker, Assemblyman Mike Gatto [asmdc.org], has proposed a novel legal theory that could allow this amendment to fuel a major legal challenge to the American surveillance state:

Let's examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation's military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That's strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.

And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family's sense of privacy and made them feel violated. Sound familiar?

Just like many cases before him, Elliott Schuchardt could not prove standing.

"I think they need to start taking other tools from the toolbox," Gatto told Ars. "It's definitely a long shot argument and is definitely one that has certain deficiencies, but what got me going on that line of reasoning is that when it has been cited in privacy cases it's been big landmark privacy cases—you get a sense that our Founding Fathers valued privacy. There’s a clear message that privacy is something."

As Gatto pointed out, one of the most recent citations for the Third Amendment in a Supreme Court decision ( Griswold v. Connecticut [cornell.edu]) is from a big case. The Third Amendment is mentioned in one single sentence in this 1965 decision concerning the constitutionality of a Connecticut state law banning contraception, which the court overturned.

"The Third Amendment, in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner, is another facet of that privacy," the Supreme Court wrote in its 7-2 majority opinion.

New letter from NSA oversight to senator details 12 instances of obvious abuse.

Steven Friedland, a law professor at Elon University, wrote up a similar argument [wakeforestlawreview.com] to Gatto's in February 2014. He was joined by Glenn Reynolds [usatoday.com], a University of Tennessee law professor, in yet another pro-Third Amendment argument from March 2015.

As Friedland concluded:

The Third Amendment no longer will be the forgotten amendment if it is considered to interlock with the Fourth Amendment to provide a check on some domestic mass surveillance intruding on civil life, particularly within the home, business or curtilage of each. In the digital era, the dual purposes of the Amendment should be understood to potentially limit the reach of cyber soldiers and protect the enjoyment of a private tenancy without governmental incursion.

Ars ran this burgeoning theory by a few legal experts. Gatto himself acknowledges the novelty of it, so it's no surprise all of the experts we consulted expressed a healthy dose of skepticism.

"The Third Amendment is always a ‘fun’ avenue for thought experiments," said Paul Ohm [paulohm.com], a law professor at Georgetown University. "But because it hasn’t been litigated in a long time, there really aren’t any experts per se about it."

US wants warrant "to break down the doors of Microsoft’s Dublin facility."

"A much better vehicle to oppose government spying is the First Amendment," he continued. "My recent book Intellectual Privacy argues that surveillance chills our abilities to think, read, and communicate freely, and there is a growing body of empirical evidence supporting this long-held intuition. We should protect our intellectual privacy, but we should do it using the First Amendment. We should also protect it through legislation like the USA Freedom Act, strong cryptography, and corporate actions like Microsoft's brave decision to fight US government [arstechnica.com] attempts to seize user emails that it holds in trust in its global cloud."

"[That case is] about the constitutional right to privacy, formed by many amendments, and it has traditionally applied to cases involving bodily decisions (abortion, contraception)," he e-mailed Ars. "So I don’t think it would do much against government surveillance. A creative and progressive Court might try to develop some theories here, but that’s not this current [Supreme Court]."

For now, legal experts appear a bit split on the idea, and we'll only truly ever know the merits of the Third Amendment in regards to privacy if a case makes it way to the Supreme Court. However, it's clear all these minds seem to agree on one thing—it's time for some new thinking and challenges regarding how privacy is being treated today.

               

---

Original Submission