• Based on their experience of English politics in the late 17th Century → government right of intrusion into private places (house and the writing desk)
• Appropriate intrusion meant a particular request for a place or thing to be searched with a permission/right based on the existence of probable cause to believe that the government intervention was warranted
• Language requires “reasonable searches and seizures” with particularity in the places/things to be searched/seized
• Part of their perception of government wrongdoing
• Place-ness of the 4th Amendment has been a given throughout the 20th Century (usually inarticulate)
• Government exercise of social control through information gathering was primarily limited to ultimate coercion (i.e., criminal prosecution/punishment) through the exclusionary rule (first declared in 1913 and only applicable to federal agents/investigators, expanded by Map v. Ohio in 60s, then eviscerated beginning in the 70s)
• Meant to be a prophylactic against incentives to invade the private places
• Has very little to do with where we live now, which is why the 4th Amendment is vanishing
• Sacredness of the home, precincts, curteledge
• No expectation of privacy means there isn’t any, etc.
• All of this was worth playing in the 20th Century → always had an exception (for private actors) capable of swallowing the rule: Constitutional rule only lay on police (first federal, then including the state)
• Feds could always allow state cops to search for them (Wolf v. Colorado, silver platter rule)
• Always understood that the evidence could be offered by private citizens. That’s the federal investigator’s job.
• If a thug wanted to “rat you out” there was nothing to prevent that evidence’s introduction
• Consent was a great avenue for investigation, even if achieved through trick/underestimation of risk, and there was always the garbage can
• California: “unsporting” to allow searches of garbage, so they required warrants for garbage searches, until it was mixed into other garbage in order to anonymize the origin of the garbage
• Judges: this was a “sport” → rule arrived at by bad thinking
• Adequate & Independent State Grounds rule → insulated from federal review propositions from state Supreme Courts if there was an adequate and independent state ground for the decision
• Federal jurisdiction does not allow revision of state law, federal review of the federal issues would be merely advisory
• Prevented U.S. Supreme Court review
• O’Connor eliminated the Adequate/Independent State Grounds rule in a case with marijuana in a car in Michigan → question about which part of the car was in (plain sight?), etc.
• Only if the state constitutional dependence was fully apparent within the 4 corners of the opinion → you have to say “Simon Says” to activate the rule
• California garbage rule was on the way out → again it was the “place” that was at issue
• Because it wasn’t in the house, it had been removed from the “zone of privacy” → because it had gone from the inside to the outside, the boundary was transgressed
• We don’t live in the world of places, any more we live in the net. The policeman of the 21st Century realizes this, and searches not spaces, but identity
• Social control of spaces is usually through symbolic acts of force (riot policemen, armed guardsmen, etc.)
• Very different from a Rent-a-Cop
• Controlling a space is an act of occupation → current means of exercising social control has taken a turn away from the mere use of symbolic force, but is now achievable by using a video camera
• Taxi-cab without partition has camera to remind you that your picture is being taken
• Not directed at a person, but at an identity
• Crime investigation is primarily activity of turning inside-out the identities of suspects (how did he get that money, what does he say on the phone, what do his friends say to him, etc.)
• When coercive power of the state is going to be applied, the real issue in investigation is how much do we know about you
• Blagojevich: nothing has been proved, but because his identity was scoured by prosecutors, we removed his identity from him
• Patrick Fitzgerald of course has warrants for all of this (roving wiretaps, PATRIOT Act, etc.)
• Of course, even these don’t really sound like they fit the idea of particularity and granted by a magistrate in a case-by-case basis with limitations on whose conversations were to be taken, etc.
• If it was a conversation with the attorney, that was not even to be eavesdropped, let alone recorded, and required special measures taken to ensure the privilege
• All of this assumed that telephones had numbers and lived in a place, and this worked within a traditional 4th amendment framework. Once a phone is mobile, the place-ness is gone. Once telephones are not tied to any particular location and don’t even have particular numbers, the policeman begins to get a stomach ache and moans for more power/tools
• Since he just wants to find out if John struck Teddy, “he can’t do it” if he can only listen to one phone. Criminals are using cell phones and changing numbers, SIM cards, etc. We need to stop them from doing this, or if you can’t order them to be subjected to our eavesdropping, you must allow us to use any phone they use.
• He’s really saying that he wants a tap on their identity. This would sound too weird, so he says “we need a roving wiretap with multiple cell phones, etc.”
• Osama bin Laden made everything possible again
• Digital telephony also raised the question of place-ness of the wires.
• The beauty of the way in which we domesticated 20th century telephone system to the 18th century system of places was because you could locate copper wires and trace them, so you tap it somewhere outside the house, and there’s no need to invade the home
• Unless you were going to place the tap on the actual phone line, you had to put the tap on a place somewhere that didn’t exist → it’s not easy to tap about a million digital phone lines (hard to reach into fiber)
• Telco’s gave policeman a heart attack when technology got more complicated and made it harder to tap
• Police demanded a place to tap, despite the Telco protestation (and the fact that Telcos owned more congressmen than the police)
• Clinton election in 1992: Constitutional law professor didn’t give a shit about constitutional rights and immediately lined up on the other side
• Battle to cajole everybody possible into a “bargain” over telephone surveillance → customer is going to pay the bill, police needed to be able to watch 2% of all calls in real time (for narcotics stings, terrorism monitoring, etc.), and Verizon was protesting the “costs” (even though that was secret)
• 1996 Act provided for access to calls to law enforcement under legal rules that were unchanged, requiring Telcos to get access as reasonably necessary, but they dragged their heels until Osama bin Laden made it necessary for them to upgrade the telephone system (WTC 7 had tons of oil and melted the old phone exchange)
• We had to do a lot of work in order to put the telephone call back in a place so it could be surveilled and seized. In 2004, it was just simpler to have the Telco hand the call over. Immunity granted so they can’t get sued
• Silver platter rule now includes loophole for theft of silver platter, break into the house, take the evidence, the government can use it, and nobody can charge you for the breaking and entering
• Obama isn’t going to do shit about it, and he’s already said so
• Because this is 18th Century language thought about by people, they thought backwards (inventing the past and remembering the future) → structure doesn’t have anything to do with social control we are seeking to limit, or the nature of the freedom we are seeking to possess
• Just metaphors from the past, which will “correctly” limit the scope of the rights (because they did think of searches in terms of places), but that doesn’t bring us to the right conclusion. What we want is not the 4th Amendment that we have.

Now we have to move in directions that are harder to point to because the past doesn’t exist to reference

• Supermarket: one can think of it as a physical location or you can think of it as a place where people come to express what’s going on inside their house (how they’re feeling, who’s their with them, what they need, what they want, what they have enough of, what they don’t have enough of)
• It’s one corner of the credit card (another place people go for similar purposes)
• By pointing across the street, you can look into a house to determine whether there’s marijuana growing in a house, and Scalia would say that’s against the “newfangled thing rule”
• Binoculars is not a newfangled thing, nor is a camera
• JFK’s speech to Nobel winners: never before has such a constellation of intellectual talent been assembled in one room except for when Thomas Jefferson dined alone
• TJ had foresight like Leonardo da Vinci. They saw over the horizon, not to the past
• The technology in principle existed because it was all working in the physical world based on natural phenomena humans “could” observe or else it violates the “newfangled thing rule”
• You could always go to the supermarket and drug store and find their records. Better than searching the house because at any given moment would only reveal what’s in the house now (could have been hidden)
• Supermarket records are the inside of the house over time
• Just add on home depot, video store, etc. and you get a full picture of what was ever in the house, and going into the house is a total waste of time
• No need for specificity or independent magistrates
• Why need it when you have Pathmark, the Gap, and Wal-Mart?
• Place is the accidental confluence of a bunch of data streams
• Identity is the object of desire → capability, access, purpose, action
• Who really cares about place
• What next? We need new constitutional theory
• Lawrence Tribe: pass my constitutional amendment for cyberspace (still thought of in terms of place, misrepresentative metaphor)
• Legislation: possible through flash mobs? Or intimidation?
• Figure out what the statute says: probably not a statutory problem
• It’s probably constitutional, and that’s not likely to change much, so we will have to start fighting with the Zombie constitution
• Have to reject textualism on the basis of changed circumstances
• Supposed to be done by “democratic” means → the whole point is that these are rights, which could not be trusted to democracies which would push the policeman forward
• This is a problem for the world because Americans are listening to everyone else’s call anyway, regardless of what it says in European constitutions, and always will
• Culture of civil liberties is not contained in constitutions, it’s in culture. What is our culture of civil liberties anymore. People told us to be frightened...of what?
• Listening to every telephone call on earth isn’t really going to stop people from carrying out clandestine or terrorist activities (these are smart people, etc.)
• We lost our sense of relationship between the scale of state power and our liberties. Technology did that. We live in a network that contains electrons and alpha particles, both packet switching and plutonium
• 1-2 generations ago, we were going to the moon (sexy), and eliminate smallpox (real)
• U.S. and U.S.S.R. kept freezers full of smallpox despite eradication everywhere else, and we empowered the state by letting our guard down
• Constitutional theory of the 18th century was smallpox inoculation: from the beginning we tried to fight the disease totally, not keeping some leftover to fight the other guy with it
• Technology is altering our understanding: extending existing lines → what’s a reasonable search/seizure now: it will be “the artificial reason of the law” (Edward Coke)
• Comforting us that we’re sticking to “principles” instead of using result-oriented jurisprudence (odd that anything should not be about the result)
• Reconstruction has to explain every discontinuity as though it were sin. Like the Civil War Amendments: no revolutions here.
• How to frame the argument not only in terms of law and not only public relations. Part of it is taking personal responsibility for not letting the state invade or signing up to be invaded by the state through private parties
• Club cards tell employers what you buy, or paying by credit card
• University ID card has RFIDs, which can be tracked or even manipulated, so do ATM cards, so do passports
• Technology is under the control of private parties with whom you contract on meaningless terms to share your identity in operative ways available to state control on mere request
• We don’t live in the world of places that are clearly delineated with boundaries. Today it’s defined by data flows that can shape an identity
• To say what the state can’t do, we need to think about what the state should do in the new context of non-spatial terms
• Degree of intrusion? Structure of? Span? Broad? Deep? For how long?
• What about the fact that we’re beyond forgetting? How many bites at the apple?
• May we infer the data? Data that’s there because the other data is there? Who controls that?
• In theory, government may deduce whatever it wants, and if the jury agrees then you’re guilty. We’ve always allowed inferences from facts
• In the old days, you needed to be the Stasi to have that kind of information
• Lives of Others: You have to be inside enough to know the part you don’t have
• Patient, relentless interrogation of everyone around you allows the state to infer you
• Social control, vulnerability is in the bitstreams, not in the places or things to be searched
• The ones that check your status and track your relationships and map where you’re going
• To figure out what we meant about this is a trip that isn’t worth taking because nobody thought about it and it wasn’t imagined then. It’s barely imagined now, it just happens to be real.

-- RickSchwartz - 16 Feb 2009

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