The Founding Fathers were without peer in the eloquence and power of words. For more than two centuries, their ideas have shown the way to build a free and prosperous nation. It’s a sign of our splintered times that some Americans feel it necessary to bring timeless language “up to date.”
Missourians will be asked next month to amend their state constitution, whose words are largely drawn from James Madison’s original, to recognize and protect privacy in the digital age.
The relevant section of the Missouri Constitution is familiar: “That the people shall be secure in their persons, papers, homes and effects from unreasonable searches and seizures.” The proposal would insert “electronic communications and data” into the list of items secured.
The proposed amendment would explicitly spell out that to “access electronic data or communication” requires a warrant based on probable cause describing the particular communication that is to be seized.
The language in the original is plain enough, even to a federal snoop, and the additions ought not to be necessary. The Bill of Rights didn’t need a rewrite man to note that messages sent by telegraph were protected in the 19th century, nor telephone calls in the 20th. There shouldn’t be any reason to identify new technologies as they come onto the market. The courts should get the point, but sometimes don’t. Judges are often reluctant to challenge the government.
Plain words and plain meanings of the Fourth Amendment to the U.S. Constitution puzzle the National Security Agency. The agency will snoop and eavesdrop on anything it pleases, whether telephone call, instant message, email or singing telegram, no matter whether the conversation is in Berlin, Moscow or Jefferson City.
No change to the Missouri Constitution will stop the NSA from breaking the law, but the threat of additional language might make state and local police — and the courts — think twice (or three times) before aping the federal example. Little Brother can be as intrusive as Big Brother. USA Today finds that police in 33 states use warrantless subpoenas to obtain “tower dumps” from telephone companies, enabling them to track anyone near a particular cellphone tower at a given time.
Additionally, 25 state and local agencies are using a “Stingray” device that masquerades as an actual cellphone tower, enabling law enforcement officers to intercept communications and track the movements of everyone in the vicinity with a mobile phone. Emails obtained by the American Civil Liberties Union reveal that the U.S. Marshals Service encourages police departments in Florida to conceal the use of this technology from judges and the public.
After one police officer wrote an honest and accurate accounting of an investigation mentioning the Stingray snooping device, and how it works, federal agents tried to intimidate the local police with scolding. A chastened cop emailed a warning to the police chief in a neighboring town. “Could you please,” he suggested, ” … at minimum instruct the detectives [in] future cases, regarding the fact that it is unnecessary to provide investigative means to anyone outside of law enforcement.”
Clarifying the fact that warrants are required to access electronic data should give Missouri judges the authority they need to keep law enforcement honest. Voters will be asked to approve the proposed amendment when it appears on the ballot Aug. 5.
Congress should enact a reminder to federal agencies, including specifically the NSA, that the plain language of the Fourth Amendment means what it says. Chief Justice John Roberts put it clearly in a recent opinion: “Get a warrant.”