Search-and-Seizure Heresy

In my profile for this Blog, I promise “unusual opinions,” including heresy. I’ve already treated readers to one heresy—the suggestion that we replace our awkward and ineffective impeachment process with a “no-confidence” vote like England’s and India’s. Here’s another.

In my view, our written Constitution’s outdated conceptual approach to search and seizure distorts our entire debate about electronic surveillance in the age of terrorism. A law regulating search and seizure in the Colonial era is simply inadequate to address intelligently the issues of the Internet Age. Here’s why.

Our basic search-and-seizure law is the Fourth Amendment, which reads as follows:

“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.”

Our Founders were good writers, and they made their purpose clear and explicit. They wanted to insure citizens’ personal security “in their persons, houses, papers and effects.”

If you think of their times, the core of their concern becomes obvious. In those days there were no intangible or electronic records. Everything that the government or a court might want to seize was tangible. The way to seize it was to have burly men bearing weapons comb through the target’s house or office, tracking mud over the floor, intimidating the inhabitants, and often leaving things in disarray.

In Colonial times, a search was thus like what our troops do in Iraq today. They break down doors, herd people into small rooms, and ransack the premises looking for weapons, explosives or evidence of insurgent activity. It would be hard to imagine anything more disruptive of citizens’ personal security, sense of autonomy, and right to be let alone.

Everything in the Fourth Amendment revolves around this core concern. The requirements that searches be “reasonable” and their objects “particularly describ[ed]” help minimize disruptive intrusions into citizens’ private space by limiting the number and scope of searches. These restrictions outlaw “fishing expeditions” in which men with weapons search private places on someone’s generalized suspicion.

In these respects the Fourth Amendment is still quite relevant today. In fact, it’s even more important because of the size, diversity and anonymity of our modern society. In Colonial times the search target often knew the searchers personally and could reason with them. They were friends and neighbors. Today, the armed persons searching our homes are nearly always complete strangers, whom we trust not to maim, kill or unduly intimidate us only because of their uniforms and training. The need to trust complete strangers entering our homes and offices with arms gives the Fourth Amendment’s core concern vital importance today.

But intangible electronic communications are an entirely different matter. They can be searched for and “seized” without any intrusion and without us ever knowing that anything has happened.

Without losing my anonymity, I can reveal that I have had substantial experience with electronics, computers and communication technology. I have a pretty good mental picture of the innumerable wires, antennae, switches, nodes, computers, and systems through which my phone conversations and e-mails flow before reaching their destination. I am conscious of how little control over their transmission I have, and how many chances there are to incept them, once they leave the wires or antennae inside my home.

As a result, I have never had any illusion of complete and absolute privacy in electronic communication. I always assumed that someone could be, or might be, listening to or reading what I say or write. When I was younger, I would sometimes hear suspicious clicks and pops on my telephone line. I would often respond by saying, “Hi, J. Edgar”—or some less printable greeting —assuming that former FBI head J. Edgar Hoover or one of his minions might be listening.

All this didn’t bother me much. The fact that some unknown, anonymous person might overhear my electronic speech wasn’t and isn’t anywhere near as threatening as a burly guy with a weapon coming unbidden into my home and rummaging through my bedroom, files and closets. There was no personal intimidation or disruption, only a vague unease that speech I would rather keep private might be overheard—and likely soon filed and forgotten—somewhere in the vast bowels of the federal government.

What did concern me was what the government might do with private information it might have gained without my knowledge or consent. And in that concern I had some comfort. A legal doctrine called the “exclusionary rule” prevented (and still prevents) intercepted information from being used in criminal proceedings unless the search or seizure that got it was covered by a proper warrant or was reasonable.

That left only the small residual concern that my private thoughts might be recorded in some musty, neglected file somewhere in the archives of a police or intelligence service. That possibility raised some questions, discussed below, but nowhere near the same concern as men with weapons rummaging through my home or office.

It seems to me that debates over electronic surveillance miss this crucial distinction. Physical invasions of one’s home or other private spaces are intrusive, intimidating, disruptive and often terrifying. We still need legal protection against them, even more than in Colonial times. For in physical intrusion the mere fact of the search or seizure is as important as—and often more important than—the result.

But interceptions of our electronic communications are a different matter. In the nature of things, we don’t even know that they are taking place. So they can’t intimidate or terrify us, and they don’t disrupt our daily lives. In that case, what concerns us, or what should concern us, is not the bare fact of a “search or seizure,” but its result. What does or can the government do with the information it has intercepted?

Here again, my personal concerns are limited. I don’t really care whether a computer somewhere is parsing all of my e-mails for words like “jihad,” “martyr,” or other evidence of Islamic extremism. To me, automated review of that sort differs little, technically or practically, from the automated process of storing and forwarding that my messages undergo, in innumerable unknown nodes, while the Internet’s standard software protocols work their magic. If our intelligence services can use automated review like that to catch terrorists and prevent their attacks, more power to them.

I also don’t care much if our intelligence services use human beings—whose interpretive power is far greater than any existing computer’s—to second-guess computers’ rough results. Like many bloggers, I use a commercial hit-logging site to measure traffic to this Blog. Occasionally, it records hits whose origins and IP addresses are completely unknown. I assume that at least some of these hits may be national or foreign intelligence services keeping tabs on what I say.

I don’t mind a bit. If a computer cannot do so, I believe that the first human to read my blog will recognize that I am no terrorist and hit the key to dump my data. I feel the same about my e-mails, although they are generally of a more private nature. If the first human review does not recognize them as innocent, the second or third probably will.

What does concern me is what might happen next. Does a government computer retain copies of my blog posts or e-mails simply because they contain suspicious key words that terrorists might use? If so, for how long and for what purpose? How many people—as distinguished from computer systems—review my communications, for how long, and for what purposes, before they are finally and permanently expunged? Can the government or “rogue” investigators review what I say out of voyeuristic curiosity? Can they intimidate or persecute me—for example, by putting my name on a terrorist watch list—just because they don’t like my personal lifestyle, my way of thinking, or my politics? If they could, they might infringe not just my Fourth Amendment rights, but my First-Amendment right to free speech as well. It is therefore subsequent use and retention, not initial interception, that in my mind require legal regulation.

More things have changed since Colonial times than the nature of our communications. The nature of threats to our personal and collective safety also have changed. In Colonial times, people lived in small towns or close-knit urban neighborhoods, and everyone knew everyone else. If would have been as impossible for a terrorist to live anonymously for several years in Colonial society as it would be today for an elephant to barge into a college classroom without being noticed.

Yet today’s far more diverse, complex and anonymous society allows unknown terrorists to live among us, in “sleeper” cells, for years without detection. That’s a fact of life. It’s what makes terrorism such a serious threat now and for the foreseeable future. Under those circumstances, we have to use every advantage of our modern technological society to overcome this key disadvantage, and we have to do so before the terrorists get their hands on nuclear weapons.

Let us suppose that we could build a computer system that could tell, with 99% accuracy, whether a person was a terrorist just by automated analysis of everyone’s e-mails. We would be fools not to use it.

Neither the Constitution nor the Fourth Amendment has anything intelligent to say on the subject because none of the conditions that we face existed when our Founders adopted them. The conditions of social anonymity that today can hide terrorists so effectively did not exist. Nor did the weapons that make them so dangerous, or the electronic systems that can help us identify and expose them without any physical intrusion into our private space. To pretend that we can solve this knotty problem by relying on the wisdom of sages from an earlier age when none of the relevant conditions existed is folly.

So what we really need to do is enhance the Fourth Amendment. It focuses on physical invasions of personal privacy that were the chief concern in the eighteenth century and are still important today. It says nothing about unknown and unknowable interceptions of intangible electronic communications that are a new concern in the twenty-first century. Yet because it focuses on “search” or “seizure”—i.e. the interception—rather than the government’s use of the information once intercepted, so does most of our law today.

As a result, our law fails to acknowledge a simple but profound fact. An unknown and unknowable interception of an intangible electronic communication produces no intrusion, no loss of autonomy, no disruption and no intimidation or other negative social impact unless and until the government does something with it.

If the government uses the information to stop a terrorist attack, I think we all would applaud that use. We can regulate or curtail more questionable uses later, by laws that address not the seizure or interception itself, but what happens afterward. Once the terrorists have been thwarted, we will have plenty of time to determine, at our leisure and with due deliberation, how other communications may or may not be used and for how long they may be retained.

There are many practical ways in which we could do so without compromising the operational details of electronic surveillance. As one example, Congress could provide for a special investigator-prosecutor to serve as civil-liberties ombudsman, with power to investigate intelligence agencies' practices and prevent unwarranted retention of collected electronic data and its misuse for purposes other than thwarting terrorism. This official could operate mostly in secret, publishing only general results that did not disclosure operational details. Congress could give him authority to bring suit in a secret court—like the current FISA court—to prohibit future abuses and to collect damages for past abuses, such as a citizen's having been put on a watch list for political reasons unrelated to terrorism. Congress also could insure this official’s public credibility by requiring Senate confirmation of his appointment, and perhaps by requiring candidates to have specified minimum experience in promoting or protecting civil liberties. A top-secret security clearance also could be required.

As it now stands, the Fourth Amendment seems to preclude any such common-sense program because it regulates only the seizure of information, not its subsequent use. It cannot solve the twenty-first-century riddle of thwarting terrorism while maintaining personal privacy in the face of intrusionless but nevertheless troubling electronic surveillance.

This is just one more respect in which our Constitution is a bit long in the tooth. We ought to amend it on this point. But we’ll never do so because we regard our Constitution as sacred. In any event, we no longer trust each other enough to countenance any meddling with our foundational document.

So we’ll continue to view this vital current issue through a lens of a bygone age. In this respect, we can only envy the British, whose unwritten constitution is far more flexible than ours. They can rely on the common sense of people still living, while we must rely on the wisdom of people long dead, as embodied in static words written over two centuries ago. Who has the more adaptive society?