“Remember Why We Have the Fourth Amendment” by Michael Price, originally appeared on Just Security, on November 25, 2015.
The Paris attacks have fueled a debate over surveillance on both sides of the Atlantic that, while not new, has reached a level of hysteria that I have not witnessed since the weeks and months following 9/11. There is great cause for grief and great cause for concern over whether those horrific events could have been prevented. But in our desire to prevent such a tragedy at home, it is vital for Americans to remember the values that drove the birth of our nation, and to guard them jealously. It is not “handwringing” to fret over the future of privacy rights, religious freedom, and free speech. At a time when the British government has spent months discussing its desire to implement a “Snooper’s Charter” and ban strong encryption, we would do well to remember that the Brits are the reason we have the Fourth Amendment (and the First), rather than echoing their arguments for broader surveillance powers.
The UK may have a spell on us. In recent days, US officials have exploited the Paris attacks to demand increased surveillance in the US, reflexively regurgitating UK proposals already rejected by the White House. CIA Director John Brennan called for the easing of the post-Snowden reforms to US surveillance practices. Former CIA Director James Woolsey and former NSA chief Mike McConnell have been vocal advocates for more electronic surveillance, while local officials in New York City have renewed their calls for an end to strong data encryption, as in the United Kingdom. Prominent members of Congress have joined the surveillance bandwagon, as have some presidential candidates (see here and here). The idea is to force big technology companies to build security flaws into their software — aka “backdoors” — that facilitate government surveillance. Of course, those flaws also facilitate unauthorized access by criminals and other non-state actors.
Also courtesy of the UK and other parts of Europe comes the idea of “soft surveillance,” better known stateside as Countering Violent Extremism (CVE), which aims to have community members and schoolteachers identify would-be terrorists using a vague set of “risk factors” developed by law enforcement. The notion has appeared in various iterations since 2007, but all of them rest on a debunked and overly simplistic, conveyer-belt theory of radicalization with no basis in empirical evidence. Still, the theory has gained traction in the US with official pilot programs launching in Los Angles, Boston, and Minneapolis-St. Paul. Unsurprisingly, community groups have had difficulty (for example, here, here, and here) connecting with law enforcement following previous surveillance incidents masquerading as outreach. Civil rights advocates (including the Brennan Center, my employer) regularly question whether the models track Muslim stereotypes better than would-be terrorists. (We have more than a half-dozen public records requests pending for additional information about CVE programs, the specifics of which are generally not known, almost all of which are approaching a year old.)
The takeaway is that Europe is not always a good model for the US when it comes to balancing civil liberties and security. The French, for example, have implemented a three-month state of emergency, complete with warrantless home searches, following on the heels of the most expansive surveillance charter that Europe has seen in decades. Those French laws, enacted in the wake of the Charlie Hebdo attacks, brought newfound surveillance authority that sadly did not prevent the most recent disaster in Paris. The proposed powers granted by the “Snooper’s Charter” would be similarly sweeping and most likely, equally unhelpful. These new UK powers would, however, be sure to expand intrusive surveillance and violate human rights principles.
Thankfully, we as Americans have a bit of experience calibrating the balance between liberty and national security. In fact, it’s pretty central to the birth of our nation (and we weren’t taking pointers from the British then, either). So, at some point (i.e., 1789), we decided to write these principles down, for seemingly obvious reasons (despite what some presidential candidates have argued). And for our current purposes, there are a couple of important parts to remember:
The First and Fourth Amendments were a product of colonial revulsion toward “writs of assistance” and “general warrants” used by agents of the British Empire, as I recount in a recent law review article. The Fourth Amendment was designed to guard against the kind of arbitrary and invasive searches and seizures that were systematically used to suppress dissent in England. John Adams and the Sons of Liberty found common cause with British dissidents like John Wilkes and set out to craft a broad prohibition on unreasonable searches and seizures in the Massachusetts Declaration of Rights that specified “papers” as a category worthy of special protection. Adams’s language is widely credited as the basis for the Fourth Amendment.
In short, the British are the reason we have a Fourth Amendment, which guarantees freedom from government surveillance in the form of unreasonable searches and seizures. And lest we forget, the British are the reason we have a First Amendment too, which guarantees the right to freedom of worship, assembly, and speech. These are fundamental American values that must not be bartered away for the snake-oil promise of perfect security, which is simply not possible. Mass surveillance will not make us more secure, as the Paris attacks demonstrated. And blanket surveillance of American-Muslim communities is not only ineffective, it’s also unconstitutional (as the Third Circuit recently reminded us).
We all want to feel safe and secure and the intelligence community undoubtedly has an important job to do. But as Americans, we are also committed to a few basic values that we do not fail to mention time-and-again from atop our shining city on a hill — liberty being chief among them. We may debate about the merits of a particular policy, but at the end of the day (at least in theory), we will always march to our own, exceptional drum.
So this Thanksgiving, I’m thankful that what was good enough for the British was not enough for the Founding Fathers. And don’t forget to give thanks to King George III — without him, we wouldn’t have a Fourth Amendment.