Echelon, the Census, and the Fourth Amendment
The mainstream media has recently, and belatedly, reported on the activities of the NSA in its ‘Echelon’ program, spying on American citizen’s electronic communications, including simple phone calls. The government defends itself against charges of thus violating the Fourth Amendment prohibition against unwarranted search and seizure by arguing that the “search” part, the interception, is not conducted by U.S. agents but rather by foreign allies, who trade the material for data our agents have similarly acquired concerning the ally’s citizens. The subsequent examination and use of the material by U.S. operatives is then unrestrained, goes the argument.
Coincident with that revelation, we are being subject to a census effort which, in keeping with a longstanding trend, is yet more intrusive and prying than its predecessor and which seeks to coerce compliance with a new $500 fine for failing to meekly fill in all the blanks. Both the revelations of long-standing spying and the new level of aggressive data collection are happening within an atmosphere of increasing concern about the loss of privacy and the growth of databases containing dangerous amounts of information on American citizens.
In light of all this, I think it is time to elucidate a simple and straightforward clarification about the meaning of the Fourth Amendment’s language and purpose. In a nutshell, the Constitution forbids the government from engaging in any contemplation of a private citizen without previously and independently established reasonable cause for suspicion of explicit criminal conduct, which has been presented under oath to a judge by someone with personal knowledge of that cause, and which is sufficient to persuade that independent judge to issue a warrant authorizing the eyes of the State to turn to that citizen. There is no meaningful standard of restraint short of this, for once any act or word of the citizen can be examined sans evidence and affirmation, our privacy becomes respected only at the whim of the State. If we allow the standard to be thus relaxed, the only restriction which the State will then acknowledge is that it embrace some certain degree or form of circumspection (which it will itself determine, albeit through some legislative or administrative process) in its methods, a pliable and easily bypassed limitation. One of the key elements of a Constitutionally limited State is that it is denied the power of discretion in its obedience to imposed limitations.
The Echelon activities are the perfect case in point. Will it be argued by anyone that it is within the meaning of restraint intended by the Fourth Amendment that a government agent can acceptably cross the border into another country and train a powerful telescope on an American citizen, looking through his windows and observing him in what he imagines to be the privacy of his home, in a manner constitutionally illegal in the United States? Of course not. Nor could such an internationally based U.S. agent listen to an warrantless bug planted on that citizen, relying on its transmission’s crossing of the border to legitimize the spying. It is not the means or place where, or purpose for which, the information is intercepted or gathered that makes it Constitutionally illegal, it is the observation or interception or gathering itself, without strict and scrupulous conformity to the Fourth Amendment restraints, that is wrong. There is no meaningful distinction that can be drawn between listening to all of your phone calls in case you mention the word ‘bomb’, as is done in this pernicious NSA program, and coming by your house and searching it for explosives, while being careful to leave everything just as you found it. I guess in either case, the innocent have nothing to fear, for no harm has been done, right?!
Similarly, in the case of the census, the government’s making it easier on itself by requiring you to answer a questionnaire covering the things it wants to know about you, and threatening to punish you if you don’t answer, is no different in kind from it’s having a cop stop you on the street and demanding the information from you on pain of otherwise being hauled off to court for a conviction and imposition of the fine, or prison should you refuse to pay. The only distinction is in the window dressing tarting up the outrage in the former case.
The absurd pretext under which this is done-- that the Founders, in providing a Constitutional mandate to take a head count so as to properly manage apportionment opened the door to government examination of citizens private affairs without limitation-- simply adds insult to the injury. The citing of some legislation supposedly authorizing the expansion of mandate is still more obnoxious for its arrogance-- Congress cannot authorize a violation of the Constitution.
The illiberal statists would have it that any scrutiny shy of rummaging through your house while you are held at gunpoint if necessary is within the scope of respect for the Fourth Amendment. They argue that you can be staked out or followed, your garbage can be searched, your cordless phone conversations can be listened to, your computer keystrokes recorded, your neighbors and associates questioned, and all without judicial oversight or remedy for you. The scope and purity of the contempt held by these types for the Constitution is revealed in their presumptuous efforts to characterize new communication technologies as not covered by the Fourth’s protections because they were not available at the time of it’s drafting. Such thinking can only occur in a mind determined to infringe.
An historian’s contemporaneous account of the respect with which a United States citizen was treated at the end of the 19th century observed that but for the post office, a typical citizen would go their entire lives without any contact between the government and themselves. Today, a typical citizen is scrutinized by agents of one or another departments of government repeatedly every year, and coincidentally finds a great deal of their day-to-day affairs subject to dictates and interference by those agents. This is not progress, rather it is degeneracy.
“Eternal Vigilance is the Price of Liberty”, it has been famously said, intending to warn against subtle pinprick encroachments upon a comfortable and hazardously complacent society. We today are beset with blunderbuss attacks, being perceived by our assailants as so grossly ignorant of our rights and the reasons for the explicit enumeration of some number of them in our founding and supreme documents as to be easy victims for the erosion of our stature as free persons and the masters in our relationship with the State. It is long past time that we hold our public servants to a higher standard than ‘what we can get away with, or at least offer a plausible rationalization for’ in their adherence to the oath they all take to uphold and defend the Constitution.
© Peter E. Hendrickson