Many people are under attack from an internal invader: their government. Fortunately, history reveals a powerful weapon against the invasion.
Privacy is the revolutionary virtue that caused American colonists to slam the door in the face of British officials, both literally and figuratively. The Third Amendment of the U.S. Constitution prohibits the then-widespread practice of quartering soldiers in private homes, even during peace time, without the consent of owners.
The Amendment sounds antiquated to modern ears. But correction of this travesty’s violation of privacy and property was important enough for revolutionaries to rank third in the list of liberties declared by the Bill of Rights. It follows the First Amendment (freedom of speech and religion) and the Second Amendment (the right to bear arms.)
Why? Because the Third Amendment asserted the right of domestic privacy against government intrusion into the most personal of realms – the home.
It is the only language in the Constitution that addresses the relationship of the individual to the military, in both war and peace, and it gives priority to the individual. As outmoded as the Amendment may seem, it takes no great leap to apply its underlying principle to the current wars conducted by militarized law enforcement against terrorism and on “treasonous” crimes, such as money laundering. The individual comes first.
The Fourth Amendment also champions privacy. It opens by defending “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In terms of crypto-privacy, the important word is “papers.” The reference can be easily extrapolated into the 21st century to cover emails and other computer data. Moreover, the disparate history of how the law has treated “papers” and “effects” reiterates the message of the Third Amendment. When it comes to “papers”, individual privacy prevails. That is, it has until recently.
The Fifth Amendment also asserts the right to privacy by delineating the right of an individual not to bear “witness against himself” in criminal cases.
Fifty-six colonists signed the Declaration of Independence. They knew it was an act of treason, which was punishable by death. If the revolution failed, they would lose their lives, their fortunes, and endanger their families. Even when it succeeded, some paid a terrible price. “Five signers were captured by the British and brutally tortured as traitors. Nine fought in the War for Independence and died from wounds or from hardships they suffered. Two lost their sons in the Continental Army. Another two had sons captured. At least a dozen of the fifty-six had their homes pillaged and burned.” That’s how important the signatories–now called Founding Fathers–viewed the principles of the revolution, including the virtue of privacy.
Privacy was a revolutionary virtue worth dying for.
Note: this discussion focuses on the U.S., but the principles expressed easily cross national borders and cultures. Also, I do not whitewash the many abuses of the American Revolution; I do not dispute that Loyalists were also colonists; I mean merely to highlight the pivotal role of privacy in the Revolution’s dynamic.
What a Difference a Word Makes
When government confiscates or surveils smart phones and computers, the purpose is to snatch private information from those devices. In 18th-century parlance, the government seizes your “papers.” Compliant citizens obediently surrender the information on those devices; some even defend the intrusion on the grounds of “security.” Such people have every right to do so; it is their personal information to share or not. But they have no right whatsoever to require anyone else to comply with invasive laws and bureaucrats; they are morally wrong to demonize those who choose not to share. Yet those who say “no” to the gang rape of their privacy are literally treated as criminals.
Happily, history exists. Its invaluable lesson: things were not always this way, and it does not have to be this way now.
The world is experiencing what has been called a “technological crisis in modern legal doctrine.” Namely, the old rules do not always fit the new situation. Physical-evidence rules do not cleanly apply to digital evidence, and inconsistent rulings by the courts on cryptocurrency further confuse the situation. No one definitively knows the legal status of your crypto-wallet or your private keys. A solution to the growing legal mess may lie in a word within the Constitution, upon which few people remark – “papers.”
Listen to history.
Again, the Fourth Amendment states, “The right of the people to be secure in their persons, houses, papers, 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.”
Aspects of the Amendment are clear. The government assumes the burden of proof before it can legally violate an individual’s privacy and property, for example. One aspect is commonly overlooked, however. It is the deliberate distinction between “papers” and “effects”, between personal information/expression and personal goods. The common law, upon which Western jurisprudence is based, has traditionally granted far greater protection to “papers.”
Law professor Donald A. Dripps opens his pioneering 2013 essay, “Dearest Property”: Digital Evidence and the History of Private “Papers” as Special Objects of Search and Seizure , with two questions. “Why does the Fourth Amendment distinctly refer to ‘papers’ prior to ‘effects’? Why should we care?”
Dripps asks because he wishes “to ground special Fourth Amendment rules for digital evidence” within statute law in order to protect “the volume of innocent and intimate information that must be exposed or demanded before the criminal material is discovered.” Fortunately, a path forward can be found in the past. In the 1760s, the American colonies reflected “a great controversy over general warrants, libels, and seizure of papers that erupted in England.” The controversy resulted in a complex analysis of privacy.
Returning to the Revolutionary Role of “Papers” in America’s Birth
In 1761, the lawyer James Otis Jr. represented several dozen colonial merchants before the Massachusetts Superior Court. The case challenged the Writs of Assistance used by customs officials. The hated Writs were indiscriminate search and seizure warrants that instructed all local law enforcement to assist customs officials in searching private property for contraband or smuggled goods. The warrants expired only upon the death of the issuing authority, and they were often transferrable.
Otis took the case pro bono. Before a packed crowd, he rose in the Massachussetts State Court House to denounce King George III, the British parliament, and the entire English nation for oppressing American colonists. An impressionable young man in the audience was galvanized by Otis’ five-hour oration and by its passionate message. According to future President John Adams, Otis’ courtroom performance sparked the American Revolution:
“Otis was a flame of Fire!….American Independance was then and there born…. Every man of the…crowded Audience appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants sic. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance SIC was born. In fifteen years, i.e. in 1776, he grew up to manhood, declared himself free.”
But colonial politics did not focus upon “papers”–letters, diaries, business records–which were not taxable items under customs law. English politics did.
In the 1760s, warrants for “papers” began to issue in Britain against authors and publishers who were suspected of “libel”–that is, sedition. Entick v. Carrington (1765) was, perhaps, the most influential legal case of the day. The presiding judge, Lord Camden, offered the famous dictim: “If it is law, it will be found in our books. If it is not to be found there, it is not law.” The government’s “right” to seize papers was not in the statutes. Therefore, it was not law.
The bare facts of the case: John Entick was the publisher of a paper that vigorously opposed the Crown. In 1762, the King’s Chief Messenger, Nathan Carrington, and three other officers broke into Entick’s home. They stole hundreds of papers in a search for evidence of sedition. Entick sued. Entick won.
Subsequent analysis of the Entick case revealed four aspects of the government’s action to be legally obnoxious. The warrant was indiscriminate, both in terms of the premises to be searched and the papers to be seized; the seizure expropriated the papers and denied use of them to the plaintiff; the warrant was unregulated because there was no neutral oversight or avenue of appeal; the seizure was inquisitorial because it gave the government information about the private workings of Entick’s mind.
The latter point had special weight. Serjeant Glynn, counsel for Entick, declared: “No power can lawfully break into a man’s house and study to search for evidence against him; this would be worse than the Spanish inquisition; for ransacking a man’s secret drawers and boxes to come at evidence against him, is like racking his body to come at his secret thoughts.”
American colonists paid close attention to Entick and to similar lawsuits in Britian. Penning the Fourth Amendment was not far behind.
“Papers” Versus “Effects” Plays Out in Law
Dripps explains, “Although the reception of English law in the newly independent American states was not automatic or uniform, a basic pattern emerged. The Americans adopted the English common law together with statutes in force at the time of Independence, unless the English rule conflicted with a natural right or a state constitution’s declaration of rights.” In short, any judge who considered issuing a warrant for papers ran up against the previously quoted principle of Entick‘s presiding judge; if it wasn’t in the statute books, it didn’t exist under law. Moreover, warrants on “papers” ran afoul of an increasing number of state constitutions.
Dripps continues, “America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War.” The Civil War cost money, and the excise tax became the federal government’s major source of funding; tax evasion ran rampant. A unique statute was passed.
An opinion in the ensuing Boyd v. United States lawsuit stated, “This act of 1863 was the first act in this country, and we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a man’s private papers, or the compulsory production of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enforce the forfeiture of his property.” Seizure of “papers”, or compelled discovery, was now embedded in statute law. Apparently, war was not the proper time to debate Constitutional protections.
The issue of “papers” versus “effects” legally zigzagged since the end of the Civil War. Arguably, the most important zig came in 1886, when Boyd was decided by the United States Supreme Court. “The story of the Boyd case”, Drips writes, “properly begins with a statute authorizing customs officers to seize the books and papers of importers suspected of evading taxes.”
Fast forward to an incident at the Port of New York. Customs officials seized 35 cases of plate glass for non-payment of import tax. The government required E.A. Boyd & Sons to produce the relevant invoice in order to fortify its case against the company. Boyd did so under protest, saying the involuntary disclosure was a form of self-incrimination that was prohibited by the Constitution; it also constituted unreasonable search and seizure. In short, the violation of “papers” denied due process. When a lower court backed the government, the case went to the Supreme Court.
The Supreme Court ruled in Boyd’s favor. It stated:
“The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court…; they apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.”
The Boyd ruling reinstated greater Constitutional protection to “papers” than to “effects.” It also bears directly upon digital “papers” or information. The protection was never absolute, however, and it has been severely eroded in the last several decades. Dripps explains, “During the last quarter of the twentieth century, the Supreme Court began effectively to equate ‘papers’ and ‘effects’. Another line of modern cases established ‘bright-line rules’ that gave the same constitutional treatment to all ‘effects’.” In short, “papers” not only lost their special status under common and Constitutional law, they also became legally interchangeable with every other “effects.” Nevertheless, the precedent of Boyd prevailed for almost a century, and it is not toothless now.