Kidnap of the Fourth Amendment

The Fourth Amendment is dying and we’re all the murderers, according to 9th Circuit Federal Court of Appeals Chief Justice Alex Kozinski and his law clerk Stephanie Grace. In an article for titled “Pulling Plug on Privacy; How Technology Helped Make Privacy Obsolete,” Kozinski and Grace eulogize the Fourth Amendment, recognizing the diminished expectation of privacy that every American has today.

With the increased use of smart phones that track our GPS location at every moment, police no longer need a warrant to track your everyday movements. In a decision by the U.S. Supreme Court, individuals who communicate information to another person no longer have an expectation of privacy regarding that information (United States v. White, 1971). It is by this logic that government agencies are able to obtain information about your everyday movements without a warrant. The agencies argue that since you have sent that data via your smartphone to your cell phone provider, they do not need a warrant to obtain that information from your cell phone provider.

The problem with this logic is that most people reasonably believe that they are not subject to being tracked by the government simply because they own a smartphone. Under the landmark case of Katz v. United States (1967), the Supreme Court held that an individual has a reasonable expectation of privacy when that individual subjectively believes that the information is remaining private and when society is willing to recognize that information as private.  As Grace and Kozinski point out, the Fourth Amendment is designed to prevent unreasonable searches and seizures. There is nothing reasonable about government agencies evading the warrant requirement and tracking the second by second movements of every citizen who prefers to own a smartphone merely because they own it. The right to be free from government invasion should not come at the sacrifice of an individual’s right to own property. Not according to our founding fathers.

The government agencies employing this scheme hide behind the same old argument that small sacrifices of individual liberty secure vast amounts of safety for all of society. Thomas Jefferson recognized the flaw in this logic and delivered an oft cited quote which expresses the opinion of those who seek liberty at any price. He said “Timid men prefer the calm of despotism to the tempestuous sea of liberty.” Though it may be tempestuous, the sea of liberty cannot be impeded by our own government without Fourth Amendment safeguards being preserved.

While Kozinski and Grace believe the Fourth Amendment has died, I believe it has only been kidnapped. Kidnapped by those who have created the façade of safety, while hiding liberty until those who seek it at any cost are able to rescue it.

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