Toward a Happy Medium: Maintaining Balance Between America’s Right to Liberty and Need for Security Through the Fourth Amendment
Abstract
The Fourth Amendment to the Constitution is near the heart of the American model of civil liberty. In no other amendment do the notions of liberty and security rest at such delicate legal counterpoints. Maintaining balance between the two is a constant challenge. Decisions in landmark cases in the last half of the 20th century helped to affirm important Fourth Amendment principles and protections concerning search and seizure, drug testing and probable cause. But in the post-9/11 world, Americans’ right to privacy and protection from undue government intrusions on their civil rights is a thorny matter still being worked out in the courts. Data mining, roving wiretaps and other forms of electronic surveillance pose unprecedented challenges to the integrity of the Fourth Amendment.
Toward a Happy Medium: Maintaining Balance Between America’s Right to Liberty and Need for Security Through the Fourth Amendment
In a sense, the Fourth Amendment to the Constitution lies at the very heart of America’s unique tradition of jurisprudence. No other amendment melds the contradictory concepts of liberty and security so elegantly, and few others have proven quite so vulnerable in the post-9/11 era. A dangerous web of political expediency and viable external/internal security threats has threatened the gossamer delicacy with which the Fourth Amendment upholds American notions of civil rights. This bedrock principle dates to before the Revolutionary War and has its origins in the Founding Fathers’ abhorrence of arbitrary searches, which were frequently perpetrated by British authorities during the Colonial period. One of the founders’ most enduring legacies is the remarkably adaptable form of government they established. That adaptability and the relevance of Fourth Amendment protections are at risk as the United States seeks a happy medium between domestic safety and the integrity of one of our most cherished and tenuous national values: the right to privacy.
The Fourth Amendment serves to guarantee the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” (U.S. Const. amend. IV). The question of what constitutes an unreasonable search has long framed the debate over Fourth Amendment issues, a debate made considerably more complex and troublesome in light of the persistent terrorism threat and the legal intricacies of information security. The Supreme Court has handed down landmark Fourth Amendment rulings in matters of search and seizure (Mapp v. Ohio, 1961); drug testing (Ferguson v. City of Charleston, 2001); and probable cause. But over the past decade, the Patriot Act and other enhancements of governmental surveillance powers comprise what many consider a new and critical challenge to American Democracy.
In 2011, journalist and author David K. Shipler wrote in the New York Times that the strength of the Fourth Amendment has been dangerously eroded in recent years, an ominous development that should be of concern to all Americans (Shipler, 2011). Shipler quoted Justice Robert H. Jackson, who served as chief prosecutor at the Nuremberg Trials. Writing in 1949, Jackson warned that “uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government” (2011). Jackson, Shipler notes, said such a “deprivation of rights” represents the most lethal form of oppression a free people can face (2011). Indeed, developments arising from the Bush and Obama administrations appear to have brought about what may amount to a “deprivation of rights” in the Fourth Amendment landscape.
Background – key cases
One of the most influential defenses of Fourth Amendment rights played out in the Supreme Court’s ruling in Mapp v. Ohio (1961). The case involved the forced police search of a Cleveland, Ohio, residence, and the failure of the police to produce a court-issued warrant upon request, the police having only brought along an affidavit.
The plaintiff, Dollree Mapp, was handcuffed after trying to take a piece of paper the police said was their warrant. Though the suspect the police sought was found in a different apartment, Mapp was convicted under Ohio law for possession of obscene materials (pornographic magazines were found in a trunk). The high court voted in favor of Mapp on grounds that states cannot convict based on illegally obtained evidence (McInnis, 2009). The significance of the court’s ruling in Mapp was that, since the Fourth Amendment provides for privacy among the states, the exclusion of illegally obtained evidence applies at the state level as well.
In Ferguson v. City of Charleston (2001), a hospital in Charleston, S.C., conducted random drug testing of patients based on the fact that staff had noticed a prevalence of cocaine use among some who were undergoing pre-natal treatment. This policy was part of an initiative enacted by the city in an effort to prosecute mothers whose new- borns tested positive for cocaine. The Supreme Court overturned a Fourth Circuit Court of Appeals ruling and upheld the original suit brought by petitioners, who argued that drug testing conducted without consent or warrant amounted to a violation of the Fourth Amendment. The high court ruled that enforcing “a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an unreasonable search” without the patient’s consent (Ferguson v. City of Charleston, 2001). The ruling in Ferguson affirmed the notion that drug testing without prior consent, even for altruistic purposes, is outside the bounds of the law as established under the Fourth Amendment.
Mapp v. Ohio and Ferguson v. City of Charleston both affirmed the soundness and efficacy of Fourth Amendment safeguards. However, in recent years, the government’s search for information in its campaign against terrorist organizations, and its wars in Afghanistan and Iraq, have altered the meaning of a citizen’s right to privacy. The issue of warrantless searches in the investigation of threats posed by foreign entities (or their agents) remains a gray area for the American justice system. In 1996, a suit brought against the National Security Agency charged that it had engaged in illegal surveillance activities under its Terrorist Surveillance Program. A district court judge ruled in favor of the plaintiffs, stating that the NSA’s actions were in violation of the Fourth and First Amendments. However, in 2007, the 6th Circuit Court of Appeals overturned the judgment in ACLU v NSA (2007), ruling that the plaintiffs were unable to show that they were targets of the agency’s surveillance program. The meaning of privacy in such cases has proven nebulous in a judicial environment often confronted by the legal challenges posed by government surveillance and data gathering.
Some legal scholars have pointed out that District Court Judge Anna Taylor’s ruling in ACLU v. NSA includes several key errors and, so, failed to address a legitimate Fourth Amendment challenge. According to one opinion, Judge Taylor failed to make use of a 1978 law requiring warrants from a secret court in matters of surveillance, and that “neither a 2001 Congressional authorization to use military force against Al Qaeda nor the president’s constitutional authority allowed the administration to ignore the (1978) law” (Liptak, 2006). Not only was Taylor’s decision overturned, but the Supreme Court summarily refused to consider an ACLU petition to review the case.
Surveillance and the Fourth Amendment
The Patriot Act may well have increased the difficulty of proving that the Fourth Amendment has been violated at the same time it seeks to provide a safer homeland
environment for all Americans. To that end, the act has opened the door to a number of measures the government may enact in its pursuit of suspected terrorist agents. In particular, the Patriot Act enhances the government’s ability to conduct wiretapping and to obtain private information stored as voicemails. One especially potent tool in the government’s arsenal is the “sneak-and-peak” warrant, which has elicited a number of objections. A sneak-and-peek warrant permits surveillance without the need to first obtain a surveillance warrant, which requires a higher level of evidence than a basic warrant (Cornell University Law School, 2011).
In 2007, an Oregon federal district court judge ruled that intelligence gathering in the surveillance of a suspected terrorist violated Fourth Amendment restrictions on unreasonable searches. Oregon resident Brandon Mayfield was wrongly suspected of having participated in the 2004 Madrid train bombing. Judge Ann Aiken wrote that the Foreign Intelligence Surveillance Act (FISA) wrongly precludes Constitutional considerations from the act of criminal surveillance. “In place of the Fourth Amendment, the people are expected to defer to the executive branch and its representation that it will authorize such surveillance only when appropriate” (CNN U.S., 2007). However, Aiken ruled that the government, in asking the court to uphold its actions under FISA conditions, is basically required the court to change the Bill of Rights (2007).
The government issued an apology to Mayfield and settled with him for $2 million. If these actions can be interpreted as the government conceding that it overstepped its legal bounds, and that it concurred in the court’s decision and violated
Constitutional limits, then Judge Aiken’s ruling in the Oregon case could be seen as an important step in the modification of the Patriot Act. It is, perhaps, reasonable to expect that the government should be endowed with extraordinary powers in the wake of the 9/11 attacks, and that far-reaching surveillance and search and seizure tools it puts in the hands of the F.B.I., Homeland Security and other agencies in the government’s expanded security complex should come into conflict with the Fourth Amendment. The ongoing challenge for the courts will be to find a balance between defending Fourth Amendment protections and wielding elevated federal powers considered mandatory in light of the perceived national security threat.
Maintaining equilibrium
Shipler wrote that American history includes many instances of policies fashioned to protect American citizens from foreign threats, only to be re-directed at perceived internal threats. “A similar process is taking place now, as the F.B.I. has begun using counterterrorism tools to search, infiltrate, and investigate groups of American peace activists and labor leaders…” (Shipler, 2011). The result is an uneven situation in which the equilibrium between those who should be protected and those who bear monitoring becomes increasingly difficult to maintain. The Constitution does not provide one set of standards for the affluent while minorities, for instance, are subjected to another. Yet Shipler warns such is the case.
Enhanced government access to a suspect’s telephone and Internet records has placed unprecedented pressure on that equilibrium. This access exists thanks to Statute 2709, which permits federal authorities to submit a National Security Letter (NSL) requiring telecommunications companies to provide phone and Internet information regarding suspected terrorists (NSLs are considered equivalent to an administrative subpoena) (Bohl, 2006). As with sneak-and-peek warrants, NSLs have been the subject of debate in the courts, centering on Fourth Amendment violations in the name of national security; and as with sneak-and-peek warrants, NSLs and Statute 2709 have been determined by some to comprise too-intrusive, and unconstitutional, advantages for the law enforcement community.
In 2004, a New York District Court judge invalidated Statute 2709, which has been considerably strengthened under the Patriot Act. The court’s decision in Doe v. Ashcroft (2004) was based on the belief that complying with the NSL issued in this case represented undue coercion and precluded the possibility of judicial review, which violated the Fourth Amendment in the form of unreasonable search and seizure (Bohl, 2006). Doe v. Ashcroft also raised the issue of whether a telecommunications company or an individual citizen can claim more expansive rights under such circumstances (2006). In other words, can a subscriber/suspect claim protection behind the Fourth Amendment, or does an Internet/telephone provider have discretionary leeway when it comes to the privacy of its customers’ records?
Judicial review
One answer may lie in judicial review, which the court in Doe v. Ashcroft argued was not provided for under Statute 2709. Bohl writes that a review of statutes that have Fourth Amendment implications, and which authorize subpoenas, has revealed that none offer the subject a pro forma opportunity to seek judicial review. However, Bohl noted that the relevant statutes nevertheless imply the possibility of review, “that both the government and the subpoenaed party can seek judicial redress” (2006). In fact, the Supreme Court ruled in U.S. v. Morton Salt (1950) that the absence of an explicit judicial review provision in the statute cited did not preclude the possibility of review, but only delayed it for possible consideration at some later date (2006). Given the government’s missteps in cases such as Mayfield v. Oregon, the right to judicial review would seem to be of paramount importance given federal discretionary powers endowed by the Patriot Act.
But the fact remains that in a case such as Doe v. Ashcroft, an NSL, through powers established under the Patriot Act, is not considered a normal search under the Fourth Amendment (Garlinger, 2009). This is because the telecommunications subscriber, by definition, offers information concerning his telephone and Internet use to a third party, namely, the service provider. Some observers have remarked that the power that stands behind an NSL actually amounts to a First Amendment violation of the doctrine of free speech, though such a stance may prove insubstantial given the fact that the Patriot Act does not, at least directly, address free speech matters but is instead concerned with the acquisition of data (2009). Given the compromising effect of the Patriot Act on Fourth Amendment rights, the First Amendment may at some point provide judges with a basis upon which to make decisions that can be used to shore up civil protections, such as judicial review (2009).
In any event, there appears to be considerable precedent for implied judicial review. In 1964, the Supreme Court ruled in U.S. v. Powell that judicial review was implicit in the administrative subpoena upon which the case turned. The matter involved a conflict between the I.R.S. and a Pennsylvania laundry, which the I.R.S. suspected of having committed fraud. Having been subpoenaed for his accounting records, the business’ owner responded that he was under no legal obligation to provide his records unless the government could provide some viable reason for suspecting the commission of fraud. A Court of Appeals decision in the case cited a statute prohibiting unnecessary examination. The Supreme Court held that though the I.R.S. could pursue enforcement of the subpoena, the subject of the subpoena had the right to “challenge the summons on any appropriate ground” (United States v. Powell, 1964).
Three years later, the high court basically reiterated its position on the matter in a case involving the search of a warehouse by the Seattle Fire Department. In See v. City of Seattle (1967), the justices ruled in favor of the appellant, who argued that in order to conduct an inspection of a locked private building, the fire department first had to obtain a search warrant that upheld constraints on unreasonable search consistent with the Fourth Amendment. The importance of this decision is that it established that inspections qualify as searches and, as such, are subject to the same Fourth Amendment requirements as other actions compelled by subpoena (See v. City of Seattle, 1967). This case was impactful in that it not only helped clarify ground rules, based on the Fourth Amendment, for the issuance of subpoenas, it also helped strengthen the rights of those who become the subjects of search and seizure orders.
Conclusion
Those rights have come under increasing pressure since the Patriot Act became law in the aftermath of the 9/11 terrorist attacks. A 2006 Boston Globe article noted that the line between national security and personal privacy had become alarmingly slim and that prospects for the Fourth Amendment should be considered under siege in the current environment. New and more sophisticated surveillance and detection technologies have been enabled by considerable legal leverage, which “directly (threatens) one of the enduring sources of (personal) security: the Fourth Amendment…” (Tribe, 2006). Those new threats come in the form of “data mining,” and “roving wiretaps,” terms which would have seemed strange to jurists who ruled on Fourth Amendment cases in decades past.
The Obama administration has extended many of the Bush administration provisions that have attracted so much scrutiny from the media and legal observers, who worry that federal powers enhanced by the Patriot Act may be made permanent and do lasting damage to the Fourth Amendment. If that proves true, then much will depend on the efficacy of oversight mechanisms established to monitor law enforcement agencies. More still will depend on which way America’s court system trends in Fourth Amendment decisions.
Conclusion
ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
Bohl, N.J. (2006). Notes. “Unsheathing a Sharp Sword: Why National Security Letters
are Permissible Under the Fourth Amendment.” (Doe v. Ashcroft, 334 F. Supp. 2d 471, S.D.N.Y. 2004). 86 B.U.L. Rev.
CNN U.S. (27 September 2006). “Federal Judge Rules 2 Patriot Act Provisions Unconstitutional.”
Ferguson v. City of Charleston, 532 U.S. 67 (2001).
Garlinger, P.P. “Privacy, Free Speech and the Patriot Act: First and Fourth Amendment
Limits on National Security Letters.” New York University Law Review, v. 84. (2009). p. 1105.
Liptak, A. (2006, August 19). “Experts Fault Reasoning in Surveillance Decision.” The New
York Times. Retrieved from http://www.nytimes.com.
Mapp v. Ohio, 367 U.S. 643 (1961).
McInnis, T.N. (2009). The Evolution of the Fourth Amendment. Lanham, MD: Lexington
Books. pp. 37-38.
See v. City of Seattle, 387 U.S. 541 (1967).
Shipler, D. K. (2011, June 22). “Free to Search and Seize.” The New York Times.
Retrieved from http://nytimes.com.
Tribe, L.H. (2006, May 16). “Bush Stomps on Fourth Amendment.” The Boston Globe.
Retrieved from http://boston.com.
U.S. Const. amend. IV.
United States v. Powell, 379 U.S. 48, 58 (1964).
