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Yes, Your Data Is Your Property Protected By The 4th Amendment

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Section 215 of the Patriot Act expired at midnight Sunday night.

While Congress debates extending the NSA’s surveillance programs that were operating under Section 215, one of the stranger arguments made in favor of extending the government’s Section 215 powers is “you don’t own your data, the phone company does.”

But our friend Jim Harper of the Cato institute has posted an article that neatly emphasizes the property basis of the 4th Amendment "privacy" issue, details why courts have bungled the 4th Amendment, and provides a quick explanation of why history may save the 4th Amendment.

Harper notes that “The earliest precedent for protection of communications in the United States is the treatment of mail. The founders used postal mail to communicate their revolutionary ideas and even to plan their insurrection against the tyranny of King George, so they prioritized protecting the privacy of the mail. In the Act of Feb. 20, 1792, passed a few short years after ratification of the Constitution, the U.S. Congress enshrined protections for mail in the law, creating heavy fines for opening or delaying mail.”

The Supreme Court later confirmed the existence of constitutional protection for postal communications says Harper in Ex Parte Jackson. In that 1877 case, the Court described the Fourth Amendment's guarantees in very interesting and clear language: "Letters and sealed packages ... are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles." Though we place mail in the hands of government agents, the Fourth Amendment protects it like it's inside our homes.

The year Ex Parte Jackson case was decided, observed Harper, both Western Union and the Bell Company began providing voice telephone service.

The Supreme Court addressed constitutional protection for phone calls some decades later in 1928. The Olmstead case was wrongly decided, we now know says Harper. It found that telephone communications weren't protected by the Constitution.

So Harper looked to the dissents for precedential language. Justice Brandeis's famous dissent spoke of the "right to be let alone," but Justice Butler provided thinking and language that should have more lasting value: "The contracts between telephone companies and users contemplate the private use of the facilities employed in the service," he wrote. "The communications belong to the parties between whom they pass."

The communications belong to the parties. That's a fascinating and important way to think about our communications, as property that we own.

When the Court reversed Olmstead in 1967's Katz decision, noted Harper, it unfortunately and inadvertently produced a Fourth Amendment doctrine basing constitutional protection on "reasonable expectations of privacy."

People do reasonably expect privacy in their communications, but "reasonable expectations" doctrine is not well equipped for administering the Fourth Amendment.

Harper says that in Smith v. Maryland, the 1979 case in which the Court used no research or even consideration of the opposing view in finding that people have no expectation of privacy in data about their phone calls. Happily, the Court has eschewed "reasonable expectation" doctrine in many recent cases.

Now here’s the key point in Jim Harper’s article that those in favor of extending Section 215 surveillance as is want to gloss over:

When the Second Circuit Court of Appeals ruled that the NSA spying program is illegal a few weeks ago, it treated data as property. When we reduce our thoughts and records to digital form and send them over the Internet, we're doing the same thing the founders did when they wrote letters and put them in the mail. Those communications are still ours, and they should be protected in transit as if they are in the home. America's private telecommunications system is not like the U.S. mail, of course. We're not handing our calls over to the government like we hand our letters to the U.S. Postal Service. Our calls and Internet communications should be more protected than the mail because we are using service providers that are obligated by contract and regulation to protect our privacy.

As the Senate met in a rare Sunday session to try to finesse the constitutional issues raised by the midnight expiration of Section 215 Senator Rand Paul told Time Magazine, “I will continue my fight to end the illegal collection of American phone records. The Second Appeals court has ruled the NSA’s bulk collection of phone records illegal. We should not be debating modifying an illegal program. We should simply end this illegal program.

How will we defend ourselves if the Patriot Act expires? Well, perhaps we could just rely on the Constitution and demonstrate exactly how traditional judicial warrants can gather all the info we need—and how bulk collection really hasn’t worked.

We have all the tools we need to preserve both security and liberty. What we now need is a president with the will to do just that.”

We are with Senator Rand Paul and Cato’s Jim Harper. Communications data is property – and the property the NSA is accessing belongs to the parties between whom it passes. It is not the government's to take – not without a particularized warrant based on the requisite level of suspicion issued by a judge following the letter of the Fourth Amendment.

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