Really hate to sound like a constitutional fundamentalist but we already have protections about this, at least in the USA, it's just completely unenforced.

Freedom from unreasonable search and seizure. The forethought against overbearing government has ALWAYS been there.

Except there's been a massive end-run around "unreasonable". I mean every single hour of every single day, someone's car is being ransacked by the police, despite them not being under arrest.

If they can do that and get away with it, then nothing else is safe or sacred.

So while I appreciate some peoples' notions of "living Constitution", this is why I tend toward "originalist" readings of the document.

Also, read up on the Katz test for questions on the 4th amendment. tl;dr it's important that society as a whole places high value on privacy, or else the SCOTUS might not protect it so much.

The thing is, the originalist take on the 4th amendment is pretty much that it prohibits the government from doing, without a warrant, what would be trespass if done by a private actor. All of the stuff people want to add, like expectation of privacy in things out in the hands of third parties, or mosaic theory, are living constitution embellishments.

The very concept of "privacy" is a living constitution idea. The constitution doesn't use the word. The 4th amendment doesn't talk about the "right to privacy" the way the 1st talks about "freedom of speech." It talks about searches and seizures of enumerated (tangible) things. It's not like the framers didn't conceive of information or records held by third parties. They were lawyers and bankers and merchants--they could easily conceive that the police might ask a shipper for records of a merchant's shipments or an accountant for financial records.

It seems very straightforward to draw a right to be secure in one's papers and property from general warrants, and pretty easily extend that to data on one's phone or computer for the same kind of data. The 4th wasn't written to protect your sheets of paper. It was written to protect your data and your private matters from authorities on a witch hunt.

If we're going by the text alone, the 4th amendment protects your property from authorities on a witch hunt: "persons, houses, papers, and effects." All are all property, and can be the subject of a trespass action (trespass to the person, trespass to land, trespass to chattel) when someone uses those things inconsistently with your property right. The 4th amendment doesn't say anything about "private matters" (and the motivating example of the 4th amendment was searches for contraband, not intrusion into "private matters"). "Expectation of privacy" is something the Supreme Court tacked onto the Constitution in 1967 during the Warren Court.

I'm actually interested in knowing the specifics of the time. Does anyone know whether at the time of the passing of the Bill of Rights whether a warrant was required for: intercepting mail, searching your horse buggy/carriage, or bank records? It wasn't invented until nearly 100 years later, but I'd also be curious about telegraphs.

The 1886 case of Boyd v. United States,[1] one of the first to look closely at the fourth amendment, held that the government could not work around the amendment by subpoenaing incriminating papers directly from the person to be charged:

> But we do not find any long usage, or any contemporary construction of the Constitution, which would justify any of the acts of Congress now under consideration. As before stated, the act of 1863 was the first act in this country, and, we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man's private papers, or the compulsory production of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enforce the forfeiture of his property.

The 1906 Supreme Court case of Hale v. Henkel addresses a corporation's fourth amendment challenge to a subpoena for the production of documents relating to the company's correspondence with third parties. The Court denied the company's fourth amendment challenge:

> We think it quite clear that the search and seizure clause of the Fourth Amendment was not intended to interfere with the power of courts to compel, through a subpoena duces tecum, the production, upon a trial in court, of documentary evidence.

The 1877 case of ex parte Jackson considered the issue of U.S. mail, and stated, in dicta, that it was protected from search by the fourth amendment:

> No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.

The 1928 case of Olmstead v. United States held that wire-tapping of telephone conversations was not protected by the fourth amendment:

> The Amendment itself shows that the search is to be of material things — the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.

Olmstead distinguished ex part Jackson as being based on the peculiar relationship between the fourth amendment and the postal monopoly:

> It is urged that the language of Mr. Justice Field in Ex parte Jackson, already quoted, offers an analogy to the interpretation of the Fourth Amendment in respect of wire tapping. But the analogy fails. The Fourth Amendment may have proper application to a sealed letter in the mail because of the constitutional provision for the Postoffice Department and the relations between the Government and those who pay to secure protection of their sealed letters. See Revised Statutes, §§ 3978 to 3988, whereby Congress monopolizes the carriage of letters and excludes from that business everyone else, and § 3929 which forbids any postmaster or other person to open any letter not addressed to himself.

That's a good an explanation as any, because Jackson is bare assertion--it cites to no authority and offers no reasoning for its holding.

The articulation in Boyd is (IMHO) closest to what the framers intended. Boyd approvingly cites the opinion of Lord Camden in Entick v. Carrington and Three Other King's Messengers. In that opinion, Lord Camden explains:

> The justification is submitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be found or produced, the silence of the books is an authority, against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass.

I.e. the government cannot take action that would be a trespass for a private party without a warrant. By that reasoning, your digital information is protected to the extent it is your property. Your Word documents on your hard drive are probably protected. Your tweets probably aren't. Your call-record metadata (which is the cell phone company's property, not yours) is not protected. Nor are your bank records (which are the bank's property, not yours). Pictures of your license plate taken by stoplight cameras are not protected.

[1] Boyd, by the way, sanctions civil forfeiture:

> The seizure of stolen goods is authorized by the common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past;[†] and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as "unreasonable," and they are not embraced within the prohibition of the amendment.

I'll read the rest, but I see you suggest civil asset forfeiture is Constitutional.

What your quote seems to describe is not the modern asset forfeiture, where cash and goods are seized without the person being charged with a crime. And I doubt Madison had "United States v. $25,000" in mind when considering the permissions of the federal government to take property.

Read Boyd, pages 623-24. It is talking precisely about the United States v. $25,000 sort of cases, where property is seized because it is contraband or otherwise subject to forfeiture, not as punishment for a crime. The opinion refers to the "first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43" which deals with seizure of imported contraband without charging anyone of a crime.

Boyd distinguishes those justified seizures from the seizures of documents at issue in the case on the basis that "[in] the one case, the government is entitled to the possession of the property; in the other it is not." One cannot have a legitimate property right in contraband or the fruits of illegal activity, so seizure thereof does not violate due process.

The problem with modern asset forfeiture (which I think is constitutional, but still a bad idea), is not due process, but probability. Finding untaxed sugar on a ship carries high indicia of reliability as to the conclusion it is contraband subject to forfeiture. That's less true for $25,000 found in someone's car trunk (though statistically, that's highly likely to be fruits of illegal activity as well).

Note that "originalist" means what they WROTE, quite literally, not what they MEANT.

So if there was a typo, or misunderstood language, "originalist" means to literally enforce the mistake in the document.

Scalia was that kind of originalist and it was a bit stupid.

Just on a side note, how does the "originalist" see the guns thing in america? Muskets?

They see it as firearms, as I understand it. I'm not a studied originalist, though.

A law governing PCs in the 1980s doesn't expire because today's smartwatches are more powerful than supercomputers of the past. A law governing "arms" is not going to be null because the arms of today have a higher firing rate.

Exactly. James Madison didn't put a big star at the bottom of the BoR stating that this is all null and void when the internet is invented.

So when is the USA going to start enforcing its constitution?

Personally I have a strong anxiety about being surveiled.

In a world where friendships are maintained online, CCTV cameras monitor the real world, and the best jobs are automatically analysing and classifying data, such anxiety is inhibiting and limiting.

I'm extremely grateful to Snowden and others for igniting this conversation, but I haven't truely felt secure post 2012. Even writing this feels like it will become a black mark against my name.

Someone correct me if I'm wrong, but AIUI, here's what a smartphone is, or can potentially be, capable of acquiring/giving up to persons unknown (in addition to everything willingly given up to FB/Instagram/Tinder/Grindr/Google):

    Your face.  
    Your voice.  
    Your conversations.  
    The faces, voices and conversations of people you associate with.  
    Your location at any given time.

At least with the aid of helpful little 'check your health' and 'security' apps/add ons:

    Your prints.  
    Your DNA.  
    Your health problems or illnesses, if any.

Plus the sites you visit and all the bundled information that gives (your interests, orientations, political leaning, hope, fears, desires etc. etc). All the contacts you have plus your relationships with them. Your daily movements, right down to guessing bathroom breaks. Plus information on the connections you use and potentially the devices around you.

The list goes on...

That final quote just sums it all up: "The primary cause would be that the strength of a giant nation was directed by eyes too blind to see all the hazards of the struggle; and the blindness would be induced not by some accident of nature or history but by hatred and vainglory.”

The worse of the modern surveillance zealotry is the fact they claim they'll leave people with non-mainstream opinions alone yet I've seen all kinds of arguments that even people who support anarchism should be placed under close observation or in prison. This troubles me because the whole idea that even if you're an anarchist that doesn't mean you are violent or willing to be so disruptive as to become a terrorist. I'm a mutualist anarchist and honestly I don't care if the government exists or not since there's not much I can personally do to it. Just espousing my ideas seems to rub certain people the wrong way even if 99.9% of the time they're purely academic in scope. The fact that technology exists to allow them to spy on me means they can constantly harass me and others like me into silence or complete seclusion. So much for a liberal society, eh?

Why http-link when there is an https one? https://www.laphamsquarterly.org/spies/open-inspection

I wonder how long until we have checkpoints at the borders of each state as yet another means of privacy invasion.

I also wonder at what point will the citizens wake up and just say no.

Statistically, the majority of people don't seem to care, which puts commentors on hacker news alone and easily listed.

Look at the UK if you want to see our future.

> There used to be a notion that it is a quintessential right for citizens to be anonymous to the government, even if that just means choosing or even just having a choice of interacting with the Government, but also being able to choose not to and forego some things.

I don't believe that such a notion ever existed in a widespread way, or was a significant part of the political culture. It would effectively be a way to "opt out" of government authority. Care to provide any evidence?

If one is being surveilled, does one care about the cultural history of that surveillance? I wonder.