Threats to liberty the founders did not foresee

Bless our nation’s founders. They thought long and hard about both real and potential threats to Americans’ liberties. They thought the Constitution and Bill of Rights had everything covered.

But it didn’t. Otherwise, the Fourth Amendment would have read:

“The right of the people to be secure in their persons, houses, papers, smartphones, email messages, GPS tracking devices, 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.”

You will note that I have used italics to expand upon the original Fourth Amendment. To judge by the uses government is making of technology the founders never dreamed of, we may need such an improvement.

An unfortunate side-effect of the technology that makes it easier and more convenient for us to communicate is that it makes it easier and more convenient for the government to snoop on us. Some in the older generation (yes, Hillary Clinton, you) seem to have no conception of how insecure personal communications devices are.

You’d think teenagers and young adults, who have grown up with gee-whiz technology, would know better. But no, many seem to have a childlike trust that Uncle Microsoft and Aunt Apple would never do anything to hurt them.

High on the list of complaints the colonists made against the British in the Declaration of Independence was invasion of privacy. During the 1700s, British authorities had sweeping power to search people, their belongings and their dwellings and to seize anything they found. General warrants were all that was required. That’s why the founders put the Fourth Amendment in place.

Generations ago, the Supreme Court recognized government was using then-new technology — the telephone — to abuse our rights to privacy. That’s why we have had laws against wiretapping. In most situations, the government has to get a warrant to listen in to one’s phone conversations. To do that, a judge has to be convinced there is a good reason phones are being used in crime. And, he or she has to be told specifically what law enforcement is trying to learn from tapping your phone.

That isn’t the case now, as a result of the 9/11 terrorist attacks. The Foreign Intelligence Surveillance Act uses special courts — in which all proceedings are secret — to get warrants for electronic surveillance. All a FISA judge needs to hear is that the government believes it has good reason to tap your phone or use the phone company to get records of who and when you called.

Just recently, the Supreme Court struck a new blow for privacy. Justices ruled police usually need a warrant to use cellphone records to learn where the device’s users have been.

Didn’t know some law enforcement agencies were checking up on you previously without warrants, did you? Big Brother is watching you.

Don’t celebrate just yet. The high court’s ruling in that case came after a 5-4 vote. The next similar situation could be decided on a 5-4 vote the wrong way.

We just celebrated Independence Day, and thus, our liberties. Let us not forget that they are under constant assault by the very government most of us rely on to defend us.

Issues such as using the global-positioning devices many of our cars are equipped with to track us remain to be settled. So do whether those DNA tests we use to predict future health and track down our ancestors can be used to arrest us. Ditto for what happens when the feds ask our cable television companies whether we have used smart TVs to visit terrorist websites.

How big a threat has technology become to our liberties? A friend of mine used to work for the National Security Agency. His job was to monitor a then-Soviet general. There were times when he knew before the general did where the officer would be the next day, my friend told me.

That was 50 years ago. Surveillance technology is much, much better now.


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