Search and Seizure
by Benjamin Studebaker
In the United States, we often get very upset about violations of privacy on the basis that they are thought to violate the 4th amendment, which protects against “unreasonable searches and seizures”. But what is it about search and seizure that is objectionable in the first place, and to what extent do the modern privacy violations we often argue about conform to that?
Let’s briefly recall what the 4th amendment says:
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.
Why did we write the 4th amendment into the constitution in the first place? During the colonial period, the British had a rather nasty habit of forcibly entering the homes of colonists and searching them. These searches were not based on any pre-existing evidence of criminality, yes, but the primary reason they were so loathed was the level of coercion involved. Having one’s home penetrated against one’s will is a kind of rape. The soldiers would go through everything, knocking things out of their rightful places, breaking things, looking for any evidence of revolutionary activity. It was extremely invasive and extremely unpleasant.
This is very different from the invasions of privacy we hear about today, which typically happen without our even being actively aware of it. Police officers do not come barging into our homes, and they don’t go tear up our rooms. Instead, they petition telecom companies for phone and internet records, they take our DNA when we’re arrested, they use cameras to record what happens on the streets, these kinds of things. Yes, they typically do not have a warrant for this behavior, they have no evidence of criminal activity, but they also are not singling people out–everyone is watched equally, and they are watched through public networks and in public spaces. We are watched when we use public phone lines, public satellites, public roads, the public series of tubes known as the internet, but no one breaks into our homes or smashes all of our things.
Last week, the Supreme Court ruled 5-4 in favor of allowing the police to take the DNA of any person they arrest and enter it into a national database, with the goal of using that DNA to solve previously unsolved crimes. This 5-4 ruling was a little different from the norm on the court–left wing Justice Breyer joined Alito, Roberts, Thomas, and Kennedy in the majority, while right wing Justice Scalia joined Kagan, Sotomayor, and Ginsberg in the minority. Scalia was quite upset:
Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason…This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane…If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light…The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.
There seems to be an interesting presumption at the heart of the civil libertarian argument here–Scalia seems to believe that it is better if many of the people who commit crimes get away with them, that if we arrest everyone who commits a crime, we will find ourselves living in a totalitarian dystopia.
But how could it be possible for perfect enforcement of the laws to land us in dystopia unless the laws themselves are wrong? The state exists to prevent societal harms. The laws it makes are designed to protect us from the harmful behaviors of others, whether those harms come in the more sophisticated sociological forms of say, denying us access to education, or more conventional forms like rape. It should never be harmful for the state to enforce one of its laws. There are only two possible cases in which it would subsequently be reasonable for a citizen to oppose the kinds non-invasive, non-prejudicial surveillance we see in modern times:
- Opposition to surveillance masks opposition to the laws–a person opposes increasing the capacity of the state to enforce the law because said person considers the laws themselves unjust.
- Desire to break the law and get away with it–a person may acknowledge that the laws themselves are just, but nonetheless wish to break the law or imagines he may wish to do so in future, and so desires that the state’s capacity to enforce the law be limited.
If we live in a society in which a great portion of the population either genuinely believes a significant portion of the laws to be unjust or actually wants to break just laws so as to get the better of other people, we have some serious problems, but not with our surveillance, but with the laws or people themselves.
Let’s consider for instance the speeding laws. If we imagine a world in which there are speed cameras everywhere, so that everyone who ever speeds is caught and is issued a speeding ticket and that world seems unjust to us, the injustice seems to come not from the existence of the speed cameras, which are merely a more effective means of enforcement than the patrol cars we already have watching our roads, but because we ourselves either object to the speed limit laws or want to break them with impunity.
By contrast, if we imagine a world in which cameras, DNA evidence, and so on are used universally, so that everyone who ever commits rape is caught, that world surely, unless we are quite disturbed morally, seems much better than the current world.
Many people have some law or other to which they object. Civil libertarians often have lots of these laws–they object to drug laws, to tax laws, to laws regulating sexual activity, and so on down the line. When new tools of law enforcement arise, civil libertarians object to those tools because they will make it easier for the state to enforce laws with which civil libertarians disagree. The question is, is it worth ensuring that people still find ways around our laws against murder and rape in order to make it easier for people to use drugs, or evade taxes, or engage in currently illegal sexual activity?
Even if we agree with the civil libertarians that one or more of those laws are indeed unjust, the answer must certainly be no. Preventing rape is much more important than ensuring access to marijuana or being able to exceed the speed limit. Insofar as we broadly agree that our laws are more just than they are unjust, we agree that it is, in aggregate, better to enforce the laws than it is to not enforce them. Insofar as that enforcement is not itself extremely unpleasant or harmful, insofar as the police are not forcing their way into our houses and tearing them to pieces, we do not surrender any liberties which we have not already agreed to surrender as citizens under the law.
When civil libertarians talk of our 4th amendment liberties being threatened, the only liberty to which they are referring is our liberty to break the law, a liberty. When a police officer wrecks my house without my consent for no reason, my liberties are violated. When he takes my phone records or records me in public or swabs my DNA the only discomfort I feel is the discomfort of knowing that if I tried to break the law, he’d probably catch me. In that moment I am deterred from breaking the law all the more–I feel the power of the state, and it keeps me law-abiding. It’s not the most pleasant sensation, but given the tendencies people have to do awful things to each other, I’d rather we experience it from time to time than not.
My only objection? I don’t like it when it’s inefficient, when it costs a lot for relatively little improvement in law enforcement.
[…] wasn’t really bothered by Edward Snowden until today. Yes, I had written that I didn’t think the NSA surveillance program was harming the American people in any […]
You quote Justice Scalia “if you are ever arrested, rightly or wrongly, and for whatever reason…This will solve some extra crimes, to be sure.”, and then you cherry pick (disregarding the ellipsis, which pro-forma does not omit substance that changes the meaning) just the conclusion of his Socratic method by asserting “Scalia seems to believe that it is better if many of the people who commit crimes get away with them,” leaving out the causal bridge in your non-Socratic rendition that ends with “that if we arrest everyone who commits a crime, we will find ourselves living in a totalitarian dystopia.” Well, for one: Justice Scalia said “arrested, rightly or WRONGLY” (emphasis added). A grave omission on your part, that defeats your argument before it begins. The State, a.k.a “The King”, a.k.a the Sovereign, Enclosed the people’s commons, our shared communal property, and Established Courts on top of our traditional inherited common law. So the State became self-serving for the elite, whom it represented. Granted the Magna Carta expanded that representation and protection to free men a.k.a. the aristocracy, but not the people a.k.a. the serfs/peasants. Us. The American Revolution changed the reading of the Royal Charters to include free men here, and indeed King Street Boston was renamed State Street. Bostonians fought for manumission? emancipation, (but there was that whole blacks 3/5 or 60% of a white vote?, akin to women’s pay 70% of a man’s) women’s and eventually Majority Sufferage. So we functionally creep toward the true model: a representative state. States only exist in people’s minds: they are dependent. People actually do supersede. Cooperation allows governance, not the other way around.
BTW, Benjamin, your analyses are fantastic! Please don’t compromise their rigor with hackneyed debate tactics. Or maybe it was just late.
BTW, Benjamin, your analyses are fantastic! I mean brilliant! Please don’t compromise their rigor with hackneyed debate tactics. Or maybe it was just getting late.
I don’t see the force of the argument you’re making. It is not obvious to me that “rightly or wrongly” changes the argument in any way.