DISCLAIMER: This blog post is not intended to form an attorney-client relationship, and it should be used for informational purposes only, and it should not be construed, and is not intended to serve, as legal advice. The facts and circumstances of your life may affect how and whether to make particular decisions while seeking legal relief and/or remedies. It is very likely that seeking legal advice from a licensed attorney is your best option.
A Brief Introduction to the History of Privacy Law in the United States of America
The United States Constitution was submitted to Congress in the Fall of 1787. Several signatories, including George Washington, Alexander Hamilton, and Benjamin Franklin, had just unanimously ordered that their draft constitution be submitted to delegates from each of the member states of the United States of America.
The Declaration of Independence had just been signed 11 years earlier, on July 4, 1776. Perhaps most famously, the Declaration of Independence states, in part:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .
The Declaration of Independence General Congress, Assembled, United States of America (Jul. 4, 1776).
In furtherance of these Rights – Life, Liberty, and Happiness – the United States of America officially ratified the first ten amendments to the U.S. Constitution, also known as the Bill of Rights, on December 15, 1791. One of these amendments, the Fourth Amendment, protects against “unreasonable searches and seizures,” providing for “[t]he right of the people to be secure in their persons, houses, papers, and effects.” See U.S. Const., Am. IV.
The Chief Justice for the Supreme Court of the United States reminded this country, recently, that “[t]he Founding generation crafted the Fourth Amendment as a ‘response to the reviled general warrants and writs of assistance of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’” Carpenter v. U.S., 585 U.S. _____ (2018) (slip op., at 4-5) (internal quotation marks omitted) (emphases added) (citing Riley v. California, 573 U.S. _____, _____ (2014) (slip op., at 27)).
In fact, “as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was ‘the first act of opposition to the arbitrary claims of Great Britain’ and helped spark the Revolution itself. Id. (emphasis added) (quoting Riley v. California, 573 U.S. _____, _____ (2014) (slip op. at 27-28) (citation omitted)).
General Warrants and Writs of Assistance – Why Did the Founding Generation Hate Them?
It is probably obvious to most people why a general warrant is something that the Founding Generation of the United States hated, once they understand the answer to the following questions: What is a general warrant? What is a writ of assistance? And why should I care?
According to the Washington Post:
A general warrant is a document issued by the executive branch, or a court. It is not based on any prior evidence of wrongdoing. It lacks particularity regarding the person or place to be searched, or the papers or records to be seized. It is not supported by oath or affirmation.”
Farrell, H., America’s founders hated general warrants. So why has the government resurrected them?, The Washington Post (Jun. 14, 2016) (last accessed Jun. 30, 2018), available at https://www.washingtonpost.com/news/monkey-cage/wp/2016/06/14/americas-founders-hated-general-warrants-so-why-has-the-government-resurrected-them/?utm_term=.18f2cae71b99. Mr. Farrell continued, explaining that, “[f]or centuries prior to the U.S. founding, English jurists and legal scholars rejected general warrants as the worst exercise of tyrannical power.” Id. (emphasis added). The Founding Generation continued this centuries-old tradition, and “[s]tate after state went on to outlaw general warrants in their constitutions, before the Fourth Amendment prohibited it in the federal Constitution.” Id.
A writ of assistance is essentially a court order, “used especially in colonial America authorizing a law officer to search in unspecified locations for unspecified illegal goods.” Writ of Assistance, Merriam-Webster (last accessed Jun. 30, 2018), available at https://www.merriam-webster.com/dictionary/writ%20of%20assistance.
A writ of assistance is not allowed under U.S. law for a very good reason – it leaves too much authority in the hands of a law-enforcement officer to search at will, without further court intervention. I once heard an anecdote, during law school, that consent to a search meant a complete rummaging-through of your belongings – even slashing your seats and destroying your home’s furniture at will. What thuggish behavior. How exactly, if true, does this behavior further the reason for this country’s founding in the first place, i.e., to secure our inalienable rights, including, but not limited to, Life, Liberty, and the pursuit of Happiness.
With the ever-increasing criminality of seemingly standard behavior, we should all care. America, last I checked, actually had the highest incarceration rate in the world. These two facts demonstrate why everyone should care about privacy law, including the idea of general warrants and writs of assistance. A government that uses unprecedented levels of your information against you in a court of law is, arguably, behaving in a manner that mimics the general warrants and writs of assistance that the Founding Generation and those who preceded them hated for hundreds of years.
It is refreshing to see the highest court in the United States limit the ability of the government to obtain your information without a warrant. This idea that the court system should review law-enforcement officers’ actions to ensure that the executive branch of the system is acting responsibly – not like a tyrant at the helm of a dictatorial state might – has been with the United States of America from its inception.
Matthew B. Beckstead, Esq.**
** Licensed in Nevada
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