Question About the Original Meaning of 4th Amendment?--

I am quite skeptical whether the President is inherently exempt from statutory restrictions (especially procedural ones) on wiretapping. But the question I want to raise here is about the original meaning of the 4th Amendment.

(BTW, I don't necessarily believe that originalism is the only legitimate form of interpretative analysis, but I do think that it is the place to start, which is why both originalists and nonoriginalists usually start there.)

Being neither an expert in Constitutional law nor an expert in criminal procedure, I wanted to ask our readers and my fellow Volokh Conspirators (particularly Orin, Eugene, Dale, and Randy, who are experts in some or all of these issues) about what research has been done into the original meaning of the 4th Amendment. On its face, it doesn't seem to be a general provision protecting people's privacy from government investigation without a warrant.

The 4th Amendment's text seems much more limited:

Amendment IV

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.

To a naive reader such as myself, it would seem to contemplate looking at people's writings, homes, and private papers, in other words, their physical property--as well as seizing their body by arrest. For seizing your physical property or your body or breaking into your home to search, a warrant and probable cause is recognized as legally necessary.

Consider that spies were commonly used in the 18th century, at least in military actions. Presumably criminal informers were as well. The 4th Amendment doesn't say that you have to have a warrant to eavesdrop on people's conversations.

Is there any evidence in discussions at the time of drafting it, voting on it, or ratifying it that the 4th Amendment was intended to require warrants when someone wanted to overhear another person talking--which is, after all, a semi-public act that someone can hear without arresting the suspect, physically breaking into his home, or seizing his private papers or other tangible personal property?

Or is there any evidence that the words of the 4th Amendment would mean at the time that eavesdropping and spying were illegal without a warrant? If not, then conversation may not have been intended to be covered.

If so, that would not end the analysis. The argument might arise whether the technological changes in the government's ability to eavesdrop have fundamentally changed the analysis such that eavesdropping was not covered then but must be covered now. Or one might argue that the federal government, being one of limited powers, did not have the power to eavesdrop without a warrant, even if the 4th Amendment does not prevent it.

Or, of course, tradition or US precedent may be thought to mandate something other than the original understanding.

I repeat that I am not claiming that I know what the original meaning of the 4th Amendment was, only that a facial reading gives me some doubt whether surveillance outside of one's home or eavesdropping were intended to require a warrant, and I'm hoping that some expert can tell me what the research tells us on this question.

Anon Y. Mous:
Let's say I own a communications network, and I choose to compete in the market by assuring all my customers that I will not voluntarily allow the government to place listening devices on my network.

Now, if the government wants to listen into a conversation taking place on my network, they are going to deal with my 4th amendment rights.
8.17.2006 11:24pm
Bill Sommerfeld (www):
IANAL, so I have a related question: did the original meaning of the 4th Amendment cover letters "in motion" in the custody of a third party? (postal service, couriers, etc.,); especially when they were in transit across an international boundary?
8.17.2006 11:27pm
Jeff Leyser (mail):
IANAL, making me even less of expert in this area than Jim, but:
when someone wanted to overhear another person talking--which is, after all, a semi-public act that someone can hear without arresting the suspect, [or] physically breaking into his home

Is that really a description of a phone conversation? I'm in my house, behind closed doors. The connection between me and the person I'm speaking with is directly to him/her, and only to him/her. That doesn't seem "semi-public" to me, and listen in on that conversation strikes me as something more than mere eavesdropping.
8.17.2006 11:31pm
Jack S. (mail) (www):
What about snail mail? Can the govt. intercept that and read it without a warrant? Seems to be the same problem as eavesdropping on a phone call and could fit in the mold of an originalist interpretation.
8.17.2006 11:45pm
James Lindgren (mail):
Anon Y. Mous, Interesting analogy.

Bill, Great question: What about letters in transit in the 18th century? There would certainly be "an expectation of privacy" and they are physical property. Were they understood as covered by the 4th Amendment?

Jeff, it is "semi-public" in the sense that one doesn't keep the words to oneself, or even in one's home, but sends them out in the world to be heard by an intended hearer, who may sometimes even be a govt. informer.

Jim Lindgren
8.17.2006 11:48pm
fishbane (mail):
Jeff, it is "semi-public" in the sense that one doesn't keep the words to oneself, or even in one's home, but sends them out in the world to be heard by an intended hearer, who may sometimes even be a govt. informer.

IANAL either. I do seem to recall a legal writer using an example of people who go to an open field to discuss things in colonial times as an example of expected privacy - they could be certain that nobody is nearby. Of course, no one today would expect that situation to be private today - the founders failed to anticipate advances in technology. (This is putting aside the what-if-I'm-talking-to-a-snitch possibility - that seems fairly obvious.)

There are good reasons on both sides of the argument that technology changes the base discussion, perhaps to the point of needing to re-think how the 4th operates. Of course, the 4th is being rapidly eroded on my fronts, from Terry pressures on communications providers (extorted, sorry, negotiated via, as I understand it, variously Commerce clause arguments, backroom appeals to patriotism in stressful times and concessions on pseudo-monopoly positions in the market, although I could be missing some.) though various actions such as the one that served as a jump-off for Jim's post, so this is largely (sorry) academic.
8.17.2006 11:58pm
Mike M (mail):
What constitutes "papers and effects?" It seems to me that this might properly include letters, whether in the home or in transit via the US Postal Service, and by extension other means of communication (but IANAL, so take it with a grain or two of salt). How has the Supreme Court interpreted this?
8.18.2006 12:00am
fishbane (mail):
Sorry, I should have proof-read.

I said: rapidly eroded on my fronts

That should be _many_ fronts

from Terry pressures on communications providers

That should be "from Terry, _to_ pressures on communications..."

Sorry about that.
8.18.2006 12:02am
AppSocRes (mail):
It's my understanding that in part the language of the 4th amendment was a reaction to the Crown's use of Writs of Assistance, arbitrary customs searches, and the like prior to the Revolution. It was an affirmation and strengthening of the Common Law notion that a man's home was his castle (and by extension so were his place of work, carriage, ships, etc., etc.) and was not subject to search except by warrant as so carefully described in the amendment, nor to siezure except under the civil and criminal law. I don't know about the mail, but I seriously doubt other forms of communication were originally protected. I suspect that these may have gotten protection via some weird merging of the 4th Amendment with Franfurter's invented right to privacy. But the latter is ignorant musing on the part of someone who is not very knowledgable about legal history.
8.18.2006 12:14am
Chris Bell (mail):
I think it seems a bit more inclusive, remember that in the 18th century "persons, homes, papers, and effects" covered just about everything private in a person's life.

Obviously street conversations, if overheard, aren't private, but you couldn't listen to a conversation in someone's house without also invading their home. No phones, no email.
8.18.2006 12:15am

I've responded above.

8.18.2006 12:17am
Christopher Cooke (mail):
The postal service question should be easy to answer, as the postal service existed when the 4th amendment was passed (wasn't Ben Franklin the postmaster?) My guess is that there has always been a warrant requirement to seize mail and read it. I may look this up (uh oh, do some real research? that would spoil the fun of a blog, which is to bs).
8.18.2006 12:18am

Read Ex Parte Jackson, 1877, which is arguably the 1st 4a opinion. And then see how it is interpreted by he majority and dissenting opinions in Olmstead in 1928.
8.18.2006 12:26am
Howard Gilbert (mail):
There is another dimension to the question. Consider two superficially similar but radically different cases:

1) Policemen come to your house and say that they have tracked a fugitive to this area. They believe he has broken into your house and is hiding in the basement. If you do not give consent to their search, then they must go to a judge, provide probable cause, and get a warrant. They would be subject to a civil suit if they ignored you, broke in, and arrested the suspect (although the criminal cannot raise this as an issue, lacking reasonable expectation of privacy in a house he broke into).

2) Policemen and soliders come to your house and say they have tracked an enemy commando to this area. He arrived in a rubber raft at a nearby beach, was spotted and tracked. They think he broke into your house and is hiding in the basement. In this case, you may not deny them entry and no warrant is required. If you doubt this, remember that an enemy soldier is immune to criminal charges and commits no crime by breaking into your house or even by shooting someone. This is combat. When captured, he becomes a POW. So if you asked a judge for a warrant, there would be no criminal case or charge to provide the court any jurisdiction. It is not even clear that he would be subject to eviction as a squatter.

Some would say that the Fourth Amendment doesn't apply to combat. Others would argue that military defense (national security) makes the search of your house always reasonable as that term is used in the Fourth Amendment. Either way, none of the modern cases involving the interpretation of the Fourth Amendment to criminal cases will necessarily transfer to a superficially similar set of facts involving a military enemy. This means that there could never have been one original meaning for "unreasonable search". Different kinds of searches have different definitions for "reasonable".

This also points out that there are certain types of searches that are always legal even though a warrant cannot be obtained because there is no defined legal mechanism to issue one for that type of activity. This doesn't mean that the NSA program is necessarily one of these activities, but at least you have to ask and answer the question.

If there are all these uncertainties about a group of government agents breaking into your house, which seems to be the clear subject of the Fourth Amendment, then issues become even more tenuous as you move away from the home to international communications with a enemy military in time of war.

["Loose Lips Sink Ships" For 200 years Americans have understood this concept. Only today would a group stand up and challenge it as an illegal government assault on the First Amendment.]
8.18.2006 12:35am
Christopher Cooke (mail):
Well, it turns out the postal service analogy is a bit more complicated. Congress has express constitutional authority to establish the postal service, which the Supreme Court, in Ex Parte Jackson (1877), said encompassed the ability to ban and impose conditions on the use of the mails. So, you have express authority under one clause for Congress to establish a service and its rules and impose conditions for its use, and other clause that protects certain papers and effects from searches.

On the other hand, the Supreme Court, twenty-two years ago, unanimously agreed (i.e., the majority and concurring and dissenting justices) that the 4th Amendment does protect one's privacy interests in packages, mail, and sealed items sent in transit, and so a warrant is generally required to search and seize such items (See US v. Jacobsen 1984). The majority and dissent parted ways over the majority's holding that 4th amendment didn't bar federal agents' use of drug test on white powder that leaked out of Federal Express package, when powder leaked from package because of forklift accident by Federal Express employee, not because of any action by federal agent. The dissent thought the federal agents should have obtained a warrant first.

So, the Supreme Court, at least, appears to have assumed that letters have always been considered one of the "papers, and effects" protected by the 4th amendment.
8.18.2006 12:54am
Mahan Atma (mail):
Personally, I'd be satisfied if the Fourth Amendment really was construed to cover the person, house, papers and effects (although it isn't obvious to me what "effects" means.)

Unfortunately, Fourth Amendment protection of all these areas has been rendered pretty toothless under modern jurisprudence.

So those among you who seek to rely on an "originalist" interpretation to support wiretaps are being mighty disingenuous if you've been silent about those explicitly listed areas all this time.

(BTW, I would have thought this a textualist approach, not originalist, to look solely at the language; there's an awfully big difference, no?)
8.18.2006 12:59am
James Lindgren (mail):
Mahan Atma,

Most originalists have moved away from "original intent" originalism to "original meaning" originalism. See Randy Barnett's work for the distinction. If by "textualist" you mean the public meaning at the time they were enacted or ratified, then textualism is similar if not identical to original meaning. If by textualism you mean what the words mean today, then textualism is very different from either kind of originalism.
8.18.2006 1:06am
James Lindgren (mail):

Thanks for your prompt answer in your separate post.

8.18.2006 1:07am
Dave Hardy (mail) (www):
Egad--those who think the 2nd Amendment has difficulty being related to the present have never looked at the 4th! In colonial times, searches were largely customs enforcement (with a lot of the founding fathers being, well, smugglers). The little originalist material I've seen relates to that... do you want government officers able to execute general warrants? Then in a textualist sense, we have the gap between no unreasonable searches and no warrants without probable cause, etc., with no mention of what requires a warrant and what does not.

As far as interception of mail, Ben Franklin distinguished himself by intercepting and copying official British correspondence (and got caught at it). I know of no reference in the founding period to the risk of mail being intercepted. This of course leads to the question of how to interpret silence... it's only human nature to complain about problems that were known and experienced, and pay less heed to "no one has ever done this, but if they did..."

So in the end we're reduced either to (a) trying to equate eavesdropping (literally, listening under the eaves of the house for conversations within, a rather weak anology to wiretapping and the like) or (b) creating a new standard of reasonable expectation of privacy, which has a problem with circular reasoning (now that we know that international telephone calls are being intercepted, who can have a reasonable expectation in their privacy?).
8.18.2006 1:13am
fishbane (mail):
(b) creating a new standard of reasonable expectation of privacy, which has a problem with circular reasoning (now that we know that international telephone calls are being intercepted, who can have a reasonable expectation in their privacy?).

Exactly. What leads back to the problem of technology. Everyone should be aware the existence of PGP, SSL, ssh, proxies, and if you're really concerned, onion routing and similar techniques. Sure, The Evil Terrorists could use these, too. But unless the NSA has both a math bending machine and also a serious need to read your communications, good informational hygene ensures that your communications can most likely stay private. (Routing issues that reveal social networks are different, and require advanced techniques, which may include onion routing, but there are others.) They're available because civil libertarians came together with liberals and a few other small identifiable groups and shot down Freeh when he was asking to mandate installing a back door in everyone's crypto capable device (google "clipper chip"). (Another funny aside is that LEAF, the encryption method developed my the NSA and madated by the failed policy, was quickly attacked, and proven worthless for most of the functions it was supposed to serve.)

The 90's were good times for us crypto and math enthusiasts. And at least our hobby isn't as illegal as backyard chemists, so we can geek on, I mean, keep on. So far.
8.18.2006 2:20am
The government can't harm me by reading my papers if the papers are blank, so what's protected by the Fourth's reference to "papers" is the content, not the medium. It isn't much of a stretch from protecting words-on-my-paper to protecting words-in-my-house.

Try this: if the government set up a powerful camera to photograph letters on my desk through the window, it'd clearly need a warrant. How is it different if it sets up a powerful listening device?
8.18.2006 8:36am
Wikstrom (mail):
[] seems quite obvious, from either historical or textual perspective, that the 4th Amendment was made a fundamental American law... in order to specifically prohibit general, suspicionless searches of the citzenry by their own government.

There is no other rational view of that law.

That the text of the 4th Amendment does not expressly state a prohibition against general searches of mail, trains, boats, rental cars, borrowed picnic-coolers, computers or electronic communications — does not therefore grant government agents the legal authority to conduct general searches of such 'unspecified' items.

The basic legal principle embodied in the 4th Amendment is clear — NO government searches of the citizenry without reasonable, individualized suspicion of wrongdoing.

The 9th Amendment automatically answers any doubts as to whether the citizenry retains any rights against unreasonable (suspicionless) government searches of their personal communications. The brevity of the 4th (..and other nine basic amendments) is not a loophole for government operatives to craft new authorities and powers over the American citizenry.
8.18.2006 10:35am
Thales (mail) (www):
Just wanted to throw in that strictly as an original matter, there is strong evidence that the framers of the Fourth Amendment did not want there to be a warrant requirement for any kind of search. The test was whether the search is reasonable. Warrants at the time of the framing were devices to (before the search) immunize officials from civil trespass suits, and were disfavored by the framers, likely because of their association with politically motivated searches (e.g. the Wilkes case from England). Therefore, the "no warrants shall issue [without] probable cause" language is present to set a *higher* bar than reasonableness on a search performed with a warrant. The framers didn't want easily granted warrants giving carte blanche to search with no liability for the damages resulting from the search.

Over time of course the Supreme Court has collapsed the reasonableness and the warrant clauses into the general rule that searches without warrants are presumptively unreasonable, unless the warrantless search fits into any of 25 or so exceptions to the judicially created warrant requirement.

Akhil Amar and Telford Taylor have written extensively about the above. How it bears on electronic surveillance is a separate question, but the background is an important first step, as you point out.
8.18.2006 12:15pm
LAS (mail) (www):
Just a bit of sidetracking and borrowing from Howard Gilbert:
If indeed an enemy soldier is immune from criminal charges, could it be that the Authorization to Use Military force gives the government (president) the right to eavesdrop on enemy soldiers (terrorists)?

Somebody asked, 'If a person on an enemy ship in U.S. territory several miles from U.S. shores, say Florida, is electronically conversing with a citizen the government has tracked to a Florida household, is the captain of a nearby U.S. navy ship breaking the fourth amendment if the captain listens in on the electronic conversation?

I believe we're in combat with a non-traditional soldier force. Does the fourth amendment remain a necessary step for the government? Borrowing from Mr. Gilbert's analogy with regard to criminal charges and warrants (most likely an incorrect transfer but I couldn't resist), would the government be subject to the fourth amendment? Would there be a 4a situation when dealing with combat troops? I'm assuming the government is eavesdropping on enemy soldiers, who may happen to be U.S. citizens.

A layperson asking questions to gain a bit of understanding.

8.18.2006 12:22pm
Clayton E. Cramer (mail) (www):
Thales writes:

Just wanted to throw in that strictly as an original matter, there is strong evidence that the framers of the Fourth Amendment did not want there to be a warrant requirement for any kind of search. The test was whether the search is reasonable.
Madison and Jefferson wrote a series of letters in the period between the Philadelphia Convention and Madison's drafting of the Bill of Rights. Jefferson was generally partial to the idea that a Bill of Rights should define general principles. From my book For the Defense of Themselves and the State:
In discussing the need for a Bill of Rights, Jefferson recognized that a general principle was occasionally a mixed blessing:
The few cases wherein these things may do evil, cannot be weighed against the multitude where the want of them will do evil.
Jefferson then discussed how the suspension of habeas corpus had been abused so often by the government of England that the few times it had
done real good, that operation is now become habitual, &the minds of the nation almost prepared to live under it's [sic] constant suspension... If no check can be found to keep the number of standing troops within safe bounds, wile they are tolerated as far as necessary, abandon them altogether, discipline well the militia, &guard the magazines with them... My idea then is, that tho' proper exceptions to these general rules are desirable &probably practicable, yet if the exceptions cannot be agreed upon, the establishment of the rules in all cases will do ill in very few. I hope therefore a bill of rights will be formed to guard the people against the federal government, as they are already guarded against their state governments in most cases.
In response to Jefferson's letter, Madison's letter of October 17, 1788, described his thoughts on how a Bill of Rights should be drafted:
Supposing a bill of rights to be proper the articles which ought to compose it, admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighborhood by Britn: or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security agst. these evils is to remove the pretext for them...

Madison's perceptions of how republics work were more realistic than Jefferson's; the internment of Japanese-Americans during World War II shows that when the desire is strong, parchment protections give way. In a similar way, after the Civil War, at the end of the Roaring Twenties, and in the turbulent 1960s, the paper protections of the Second Amendment and its state analogs gave way.

Madison's reluctance to draw the sort of strict line that Jefferson proposed may be seen in the qualifying phrases, "but in a manner warranted by law" in the Third Amendment, and such broadly interpretable phrases as, "Excessive bail," "excessive fines," and "without probable cause." Yet other amendments proposed by Madison ring with Jeffersonian certainty:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments...

The right of the people to keep and bear arms shall not be infringed;...
Those who see the broad and sweeping language of the Second Amendment as reflecting a broader protection than was intended should consider this exchange between Madison and Jefferson. Madison expressed his desire to avoid unnecessarily broad declarations of rights; because they would be trespassed by the majority, such declarations would lose their importance in the public mind. Not surprisingly, we find that some of the rights that Madison sought to protect are sufficiently qualified and limited that they would not be a hopeless obstacle to the public desires; but some rights—including the individual rights section of the Second Amendment and the protections of the First Amendment—are written in the broadest possible language, leaving no room for the majority to restrict the individual rights.
8.18.2006 1:30pm
Warsong (mail) (www):
I'm not sure what the government 'can' do outside of the bounds of the 4th Amd., but, I know what 'someone' did to me.

Twice, in the middle '90's, someone entered my home, and, backed up the Hard Drives on both of my Computers. There are reasons to suspect that whoever did this was working for some government agency.

The first time, I was upgrading the Motherboard and Video Card on my mini-Tower PC, and, was called away for about 3 hours, leaving the pieces scattered all over the room. When I returned, I walked into my Bedroom/Office, and, found the Window wide open, with the Venetian Blind all the way up and skewed. I walked over to the Window, and, saw the Screen laying in the yard, about 10 feet away.

Turning around, I was startled to find my Computer up and running, with the Win 98 Desktop showing. Checking it out, the left side of the Case was still open, and, the Floppy Drive Ribbon Tape, and, Power Cord were hanging out the side of the Computer.

Getting a bit suspicious, I checked the Desktop and found a Colorado Backup Icon on the Desktop...I've never owned a Backup of any kind. I checked the properties of both Hard Drives, and, both showed to have been backed up, during the time I was away.

I walked out on the Breezway, where I kept my networked Backup Computer, and, it seemed untouched (nothing hanging out the side), but, there was a Colorado Backup Icon on its Desktop, too. Both Hard Drives also showed to have been backed up at approximately the same time. And, several things had been knocked over (Flower Pots, a chair) on the Backporch, where someone made a hasty exit out the Backdoor. Several hours later, my brother discovered that someone had accidentally switched the Speaker and Microphone plugs (if you weren't carefull when pulling it out to get at the innards, they'ld hang up and unplug themselves), oh, and, they hadn't plugged the power back into the Floppy Drive.

About a year later, there was a second intrusion, where they were a little less careless with the Computers, but, left the Colorado Backup software installed (Icons on the Desktops). But, when I started checking the house out, I discovered a Window open in the back Bedroom, the Window Unit laying on the ground, and, the Venetian Blind and truncated Screen both totally missing (sorta looked like one of the Keystone Kops got tangled up in the Blind, and, ripped it down).

I never pursued it, because there was nothing on those Computers that I wouldn't, and, hadn't posted on public forums, and, both episodes left me ROFLMA. All that was there were several thousand images of every Planet, Moon and Asteroid that have been taken since we started sending Satellites to orbit, or, drop Landers on the Surface of a Planetary Body. Many of them were slightly enhanced or enlarged to show interesting anomalies (up through Pathfinder, at that time), well, they included every image taken on all the Apollo Moon Missions, as well.

Strangely, I've had calls from several government agencies questioning my interest in those images, and, I suspect someone got overly curious, and, was undersatisfied with my answers.

Still, I would think that qualifies as a breach of my 4th Amendment Rights. Next time, maybe they'll send some professionals, rather than copy clerks. Or, they could just call me and I'll send them a complete set of autographed copies, on CD Roms (after all, I got them from their public Websites).

Well, at least I'd send them what I've 're'acquired, now, after a bad IDE Port spiked those Hard Drives. Quite a lot of that stuff (Viking, Mariner, etc.) is no longer available, except on NASA CD's...and, now they've lost the Apollo 11 Films. Buncha Keystone Kops, ya know, who probably never heard of the 4th Amendment.
8.18.2006 2:35pm
markm (mail):
"If indeed an enemy soldier is immune from criminal charges, could it be that the Authorization to Use Military force gives the government (president) the right to eavesdrop on enemy soldiers (terrorists)?"

The issue is that there doesn't seem to be much of a mechanism left to ensure they are eavesdropping on the terrorists as opposed to eavesdropping on everyone whose phone calls happen to cross our nation's boundaries. Nowadays, that includes a lot of calls that you won't know are foreign; call a local business, and it might be forwarded to foreign call centers. Even some McDonald's drive-through lanes are patched through to order-takers in India. I can't see much harm except wasted time if government snoops are listening in on McD's orders or on calls to Dell tech support, but if you call Citibank with a question about your credit card account, you probably don't want a third party listening. Do you know whether the person on the other end of the line is in the USA or in India?
8.18.2006 4:47pm
markm (mail):
I'm sure that at least within Anglo-American traditions, deliberate eavesdropping has always been regarded as an anti-social act, at least a major breach of manners. They may have thrived on gossip from sources including accidentally overheard conversations, but standing at the eaves was a whole lot different than just happening to hear something as one walked by. There might not have been legal penalties, but social disapproval was something 18th and 19th century Americans took pretty seriously.

I define deliberate eavesdropping as surreptitiously positioning oneself with the intention of overhearing a conversation whose participants thought they were in private. Using an electronic device to secretly listen in on phone calls certainly qualifies.
8.18.2006 5:13pm
LAS (mail) (www):
I hear you markm.
My issues, however, are 1) Is this eavesdropping a breach of the fourth amendment? 2) If there's not much of a mechanism…, what is the government doing with the 'extraneous' information? That is, information totally unrelated to catching terrorists. The second concern is troublesome. There's this belief: Any information gathered by immoral, illegal, or whatever means, if relevant to (whatever), can be used…

From a layperson's perspective, I think the Fathers meant to keep the govt. out of our personal lives (electronic communication unanticipated). I'm not much interested in the secretive listening, but what's done with the irrelevant spoils (information) is a huge concern.

Regarding your citi example, I'm more concerned with identity theft snoops, than govt. snoops. BTW, and speculating, I think the NSA knows which calls are foreign and which are not. They also know or at least have a reason to believe that they know the targets (enemy). Clear and Present Danger stuff.

The Mickey Ds scenario may not be very useful with regard to NSA eavesdropping.

8.18.2006 6:53pm
Clayton E. Cramer (mail) (www):
Before anyone takes Warsong too seriously:

I'm not sure what the government 'can' do outside of the bounds of the 4th Amd., but, I know what 'someone' did to me.

Twice, in the middle '90's, someone entered my home, and, backed up the Hard Drives on both of my Computers. There are reasons to suspect that whoever did this was working for some government agency.
Make sure you visit his website. He makes the "We never went to the Moon" crowd seem well-grounded.
8.18.2006 8:51pm
AnonScholar (mail):
I'm sorry to intrude on the fun here, but there is actually a serious, and seriously contested, scholarly literature on this topic. Akhil Amar, as a prior comment has noted, stakes out a position in his book on the Bill of Rights, modifying somewhat a position taken decades before by Telford Taylor. Thomas Davies, in a long Michigan L. Rev article, takes a rather different view. And Leonard Levy, in one of the middle chapters of his 1988 book on originalism, takes yet another view, incorporating the extensive research done and conclusions reached by his student William Cuddihy, who wrote a massive doctoral dissertation on the subject.

In short, before we can debate the application of the original meaning of the 4th amendment, we have to first figure out just what that meaning is -- and that is far from easy, given the lack of scholarly consensus at this juncture, not to mention the usual but often insurmountable difficulties in translating 18th century concerns to our own time.
8.19.2006 1:19am