The founders had zilch to say about monitoring activity or networks. You could tail people in 1789 too, and it didn't require a warrant then.

I'll presume you are not in favor of the surveillance state (I don't know you, so correct me if I'm wrong -- perhaps you're a fan).

If you don't want to use the Constitutional argument (which I believe holds given the 4th amendment, but hey, that's me), then how would you base the argument?

Please advise. I'd really appreciate some insight into how better to communicate with people such as yourself. Thanks!

EDIT: I see you've got a law-talker email, so I'm expecting something really awesome! Lawyers are the best!

I'm not in favor of the surveillance state. But I don't think the 4th amendment is the right vehicle for what you want to achieve. First, the 4th amendment is about searches and not monitoring. In 1789, the police could have followed you around, asked all your neighbors who you talked too, gotten lists of everything you bought from the stores you went to, gotten information about your finances from your bank and accountant, etc, and they could have done all that without a warrant. Second, the "third party doctrine" makes the 4th amendment mostly inapplicable to online privacy. It basically says that if you expose information voluntarily to a third party, you can't claim 4th amendment protections for it. Under this doctrine, your bank records are not protected. It hasn't been decided in court yet, but arguably your Facebook posts aren't protected either, or the contents of your Google Drive, etc. This is all information you're voluntarily exposing to Google, Facebook, etc, as opposed to keeping it "private."

Someone in a sibling post to yours pointed out: but in 1789 it wasn't possible to tail everyone. That's true. In 1789, if you wanted to watch someone's comings and goings, you had to post a policeman outside their house. Today, you can put cameras everywhere. Similarly, in 1789, people didn't regularly update third parties with their exact location every few seconds. But today people do just that with their cell phones. But there is no legal principle that says that police investigatory powers that were previously legal become illegal as soon as they can automate the process. And moreover, especially in front of a conservative Supreme Court like the one we have, "results oriented" arguments aren't going to fly. You can't start from the position of saying: "we want to make the surveillance state illegal" and try to figure out how to re-purpose the 4th amendment to make it so.

Basically, I think Constitutional challenges to NSA surveillance are not really going to have much impact other than chipping away at the edges. I can imagine a future in which a Supreme Court reevaluates things like the third party doctrine in light of how people communicate in the modern world. But: 1) conservative jurists don't like to do that at all (they're "original intent" kind of people); and 2) even liberal jurists don't like to do it until there is a critical mass of public thought on the side of that interpretation.

The Supreme Court could pull a Roe v. Wade and find a far-reaching protection of privacy and communications in the 4th amendment. That could invalidate large parts of the surveillance state, including things like drone surveillance of public areas. But they're not going to do that until at least a large minority of people in the public and in academia think that way.

And that's the problem with people who oppose the surveillance state. They're a tiny minority. They can't get Congress to act, they can't get the President to Act, and they can't even convince enough of liberal academia to support their position to get "living Constitution" judges to act. So the policy position is basically dead in the water.

> But there is no legal principle that says that police investigatory powers that were previously legal become illegal as soon as they can automate the process

This is, IMO, the key. You're right: things like that were never (rarely?) categorized implicitly as illegal, because they were things that people didn't consider POSSIBLE. Unfortunately, most of our legal framework is based on the idea of precedent.

Our options are: - pass laws to explicitly prohibit this behavior - argue successfully in front of the courts that this behavior is counter to the constitution's provisions.

Since most people seem to figure that the first is nearly impossible, especially since the gov't uses secret courts and documents to argue that this doesn't apply to what they're doing (e.g., waterboarding is not torture, "reasonable" means "collect all the things", and so on), we are seeing publicity on the second front.

Thank you for the great reply; nice to see a thought process and not just snarky one-liners!

I still think Constitutional arguments are more likely to get traction given their marketing potential: people get worked up when you tell them the Constitution is being trampled. These arguments may only be indirect ("chipping away"), but sometimes all you need is a toehold.

> people get worked up when you tell them the Constitution is being trampled

And some people get worked up when you lie right to their face and claim that something is Unconstitutional when the Constitution doesn't touch it at all. :)

But the Constitution does mention the communications medium of the founder's era...

    "...papers and effects..."

It is debatable wether "papers," properly read in the context of "persons" and "houses," is referring to communications rather than information storage. In any case, you can't ignore two other things: 1) the word "their"; and 3) the historically broad powers of subpoenas in the common law judicial system.

If you send a letter to someone, is it your paper, or is it their paper? This is really crucial, because the types of communication at issue aren't like postal letter that might have qualified as a "paper" under the 4th. Postal letters are sent sealed to the recipient. They are not copied or stored or archived by any intermediary, or even seen by any intermediary. But all of these things happen to your Facebook posts and gchats and gmails. And some of the things that are at issue, like Verizon's call detail records, are never even in your possession at any point nor are they generated by you! They are some third party's observations of your activities. How do you say that is your "paper" rather than Verizon's?

Also, historically, the protections that exist with respect to third parties' information about you are dramatically less than the protections that exist with regards to information in your possession. The government needs a warrant with probable cause to rifle through your office looking for tax documents, but can get your accountant to give up any information he has about your finances with a simple subpoena. This was as true in the founder's time as it is today.

I can get on board with the idea that "papers" encompasses digital documents in your personal possession. Maybe even direct digital transfers between computers. But documents stored and archived by third parties that look through those documents to target advertising to you? I think you've left the orbit of the 4th amendment at that point.

Also, even "papers and effects" doesn't give you enough mileage to attack other sorts of surveillance: drone cameras recording your comings and goings in public, aggregation and indexing of your public forum posts, etc. That's what I really mean when I say the 4th amendment doesn't say anything about "monitoring."

Fair enough.

However, I feel pretty good about any public effort to end the post-9/11 Strangelovian affair we've got going on in this country.

But you couldn't tail everyone.

That isn't a legal constraint, it's a physical one.

Sure, but the founders didn't bother clearly deliniating all the physically impossible ways the government shouldn't be permitted to violate our rights. It is quite possible that something newly possible is a violation of rights we were supposed to have, whether specified implicitly, explicitly, or not at all.

At an extreme, the constitution says nothing explicit about brain control rays, but if we invent them I am quite confident in asserting that use should be deemed unconstitutional because of rights we should be assumed to have.

And?

I think that is actually very relevant.

For example, if I scrape email in an automated manner and send messages to those emails for purpose of profit (say, advertising my business), then I am subject to very different laws regarding spam than if I manually gathered the emails.

I'm sure, given your legal prowess, you could expand a very interesting argument here. Ok, your turn ;)

And there is a substantive difference between surveillance and mass surveillance. It's not just a matter of degree; it's a matter of kind.

And the 4th amendment doesn't say anything about either. The fact that something is bad doesn't mean that the Constitution provides some means to make that thing illegal.

I don't know that this analogy is valid or not.