The Fourth Amendment Protects Private Property Not Public Acts

I am about to make some of you angry.

Without a warrant, government agents cannot monitor or acquire verbal and written communication occurring in the privacy of your home. However, the US Constitution does not protect communications Americans blindly send out into the public domain, electronically. Moreover, third parties facilitating the convenience of our hi-tech public communications—storing the records and possibly the content of these communications—are not necessarily civilly or criminally liable for providing your private information to anyone.

This is the dilemma facing a society addicted to the convenience of pushing a button. The fourth amendment protects private property only. Once you click send, you are on your own.

From the Fourth Amendment:

“the right of the people to be secure in their persons, houses, papers, and effects, shall not be violated”  

America’s outrage over government surveillance programs is reasonable. An untrustworthy government or agent with a vendetta can target their adversaries using innocuous public data. History proves it. Prior Supreme Court rulings have upheld public surveillance by government agents without warrants for close to a century.

Like it or not “private property” protections cannot be violated without the essential element of “government trespass. “ Public monitoring of American citizens is not government trespass.

From street corner and stop light cameras, to face recognition, to publicly recorded personal cell phone videos, many an American has been investigated, tried and convicted, even self-incriminated, with evidence acquired in the public domain without a warrant. Local police do it all the time.

As disagreeable as it may be to American’s sensibilities, our current laws do not protect Americans privacy in the public sphere. Private property (written, recorded or stored communications) on your computer, cell phone, I-pad, etc. cannot be accessed or seized by government agents—within the confines of your private property—without a legal search warrant and that requires probable cause.

Government, without a warrant, can acquire third party stored records, things like phone company call logs, e-mail records and possibly e-mail content stored by a companies like Google. These very same companies face no civil or criminal legal consequences for willingly offering this information to government. Check your agreements with your internet providers and e-mail services.

I do not like it, but that is a legal reality.

If America wishes to re-define privacy rights—in our hi-tech world—to equate government monitoring of public information with illegal trespass, it will require revolutionary legislation or a Supreme Court ruling expanding Americans Fourth amendment “reasonable expectations of privacy.”

Third parties have no legal obligation to protect private communications (verbal, written or electronic) transmitted and stored publicly. If Americans directed their collective outrage at governments third party accomplices, we could force these publicly traded companies to change their policies to incorporate a civil contract to protect these records and communications from warrant less access without customer permission. Then, if these companies release customer information without customer permission or a legal search warrant they can be sued for damages.

As an example, if a high percentage of Google and Verizon customers stopped using the services of companies who bow to government data seizures, I am sure these companies would be more willing to collaborate with their bread and butter customers’ privacy requests than the government. I suppose that might depend on Google and Verizon’s loyalties, but at least the public would know who they can trust and why?

The technology exists to monitor our every move. These government actions—however appalling—may not be an infringement of our Constitutional protections. You have the power to choose with whom you do business. Choose wisely.

Just a thought. Think about it. Let the debate begin.