Bill of Rights at 225: Fourth Amendment all too relevant in digital age

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Justice Louis D. Brandeis once wrote, “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”

Sixth in a 12-part series on the 10 amendments of the Bill of Rights, running through Dec. 22. Today: The Fourth Amendment, the right of the people to be "secure in their persons, houses, papers and effects."

By Jeffrey Rosen

At the National Constitution Center, we love all of the Bill of Rights amendments equally. But if I had to pick one amendment that gave rise to all the others, it would be the Fourth.

That's because the controversy that gave rise to the Fourth Amendment sparked the American Revolution, which in turn led to the Constitutional Convention and the ultimate adoption of the Bill of Rights.

The controversy in question involved the hated writs of assistance that allowed King George's agents to break into the homes of colonists in Boston and elsewhere looking for evidence of failure to pay the hated taxes that led to the Boston Tea Party. After James Otis denounced the writs of assistance in a famous speech in Boston in 1761, John Adams, who heard the speech, said it was "the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."

In a related case in England, King George issued a general warrant authorizing his agents to break into the homes of British subjects to identify the author of "North Briton 45," an anonymous pamphlet criticizing the king. The fishing expedition eventually revealed the British rabble-rousing dissenter John Wilkes as the author of the pamphlet.

Wilkes was accused of seditious libel - that is, criticizing the king - but a jury acquitted him and awarded him lavish damages. The landmark decision, handed down by Lord Camden, came to stand for the proposition that unregulated searches of people's houses and private papers violated the fundamental rights of all free people. And the Wilkes decision was so galvanizing for the American colonists that they named towns across the Eastern seaboard - from Camden, N.J. to Wilkes-Barre, Pa. - in honor of the case.

In the 20th century, the Supreme Court struggled to translate the values of the Fourth Amendment in an age of new technologies. In the 1928 Olmstead case, a 5-4 decision by Chief Justice William Howard Taft held that the Fourth Amendment didn't apply to wiretapping because the government was able to eavesdrop on the telephone conversations of a suspected bootlegger without physically trespassing on his private property.

In a visionary dissenting opinion, Justice Louis D. Brandeis cited James Otis' denunciation of the writs of assistance which he said were a "lesser intrusion" than wiretapping, which could invade the privacy of people on both ends of the telephone. In a prophetic passage, he then seemed to anticipate the age of cyberspace and cloud computing, where digital papers could be stored outside the home.

"Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home," Brandeis wrote.

He then looked forward to an age of FMRI brain scans that can invade cognitive liberty. "Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts, and emotions." To Lord Camden, the judge in the Wilkes case, Brandeis noted, "a far slighter intrusion seemed 'subversive of all the comforts of society.' Can it be that the Constitution affords no protection against such invasions of individual security?"

The great Fourth Amendment controversies of the 21st century involve the future of privacy in a digital age. Can the government access digital papers stored on iPhones or in third-party databases in the digital cloud?

In an inspiring and unanimous decision in 2014, Chief Justice John Roberts wrote for the court that the police cannot search a cell phone without a warrant when they arrest a suspect because a cell phone contains so much private information. Roberts, like Brandeis, cited James Otis' speech denouncing the writs of assistance and suggested that the Fourth Amendment had to be construed to protect our digital papers and effects.

The Supreme Court is only beginning to addresses the challenges of 21st-century digital privacy. It hasn't yet ruled squarely whether the government can track all of our movements in public places, for example, by following us with tiny drone-mounted cameras, or seizing the geolocational information from our cell phones, without a warrant.

However you come down on the most hotly contested questions involving digital privacy, it's inspiring that all of the justices of the Supreme Court are determined to translate the Fourth Amendment so it protects as much privacy in the 21st century as Americans demanded when they ratified the Bill of Rights 225 years ago today.

Jeffrey Rosen is president and CEO of the National Constitution Center and author of "Louis D. Brandeis: American Prophet." To learn more about the best arguments on whether 24/7 surveillance in public violates the Fourth Amendment, readers can visit the Constitution Center's Interactive Constitution at constitutioncenter.org.

Tomorrow: The Fifth Amendment.