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Encryption & the 4th Amendment

Constitution - We the PeopleAlas, there’s no right to privacy in the Constitution of the United States. The closest we come to that right is in the 4th Amendment which states that “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 probably cause —” and so forth.

For the past few years, the administration has been trying to get US companies to install “back doors” in their encryption programs. That way federal agencies will be able to access our otherwise private information. And now, as you know, a federal judge has ordered Apple, Inc. to hack its encrypted i-phone so the FBI will get into the device used by one of the killers in the San Bernardino massacre. Apple says No. Doing that, says CEO Tim Cook, would ultimately compromise the privacy of all i-phone users.

That’s a brave stand for privacy. And, frankly, if we have to rely on global corporations to protect us from government snooping, we’re in a bad way.

In 1890 a couple of law partners, Samuel Warren and Louis Brandeis, wrote an article for the Harvard Law Review about privacy. In the years since then, it’s become one of the most famous articles ever printed in that review. In their article, the young lawyers found a right to privacy  — or, as they wrote, “the right to be left alone” — in common law, and also found it implicitly in a variety of statutes. It was a good start, but that was over 100 years ago.

Thirty years later, the same Louis Brandeis, by then a Justice of the Supreme Court, argued that a right to privacy was implicit in the 4th Amendment. The case was Olmstead v. the United States, and the question was whether recordings of wiretapped private telephone conversations constituted impermissibly seized evidence and consequently should be excluded from the trial. The case was well chosen to favor the use of wiretaps, because the people being wiretapped were in an outrageously huge bootlegging business. By a five-to-four decision, the Court said wiretapping had not violated the 4th Amendment. So Brandeis lost. As Chief Justice William Howard Taft said, there had been no searching and nothing had been seized, the conversation had been merely overheard. By the way, that decision was not overturned until 1967, thirty-nine years later.

The article written by Brandeis and Warren in 1890 had been stimulated by the invention of the camera and the public display in newspapers of photographs of private people. And in the 1928 Olmstead case, the decision followed upon the use of telephone wiretaps. In each case the interpretation of the 4th Amendment came in response to a technological advance that law didn’t cover. Now, of course, technology has advanced terrifically with the invention of the marvelous digital phone and all that it can do.

Clearly, any conclusive decision in the Apple case will have to involve an interpretation of the 4th Amendment. The Apple case, like the Olmstead case of 1928, is well chosen to favor the authorities, namely the FBI, since the phone they want to get into  was used by the perpetrators of the horrifying San Bernardino massacre. It’s a hard case. And there’s an old legal adage that say, “Hard cases make bad law”

If you’re interested, Critical Pages has an earlier post on Louis Brandeis.

More Notes

The World Happiness Report, released by the United Nations, ranks countries on six key variables that support well-being: income, freedom, trust, healthy life expectancy, social support and generosity. This year, Finland is first, followed by Norway, Denmark, Iceland and Switzerland, followed by Netherlands, Canada,New Zealand, Sweden, Australia. The United States, which has never been in the top ten, silpped down four places from last year and is now 18th. President Trump may make American Great Again, but apparently not happier.