The Fourth Amendment, prohibiting unreasonable search and seizure by the government. Search and seize with probable cause, sure, go nuts. But "seize it all and let big data sort it out" is a pretty fundamental abdication of the oath our officials took to uphold the Constitution, no matter what the excuse for it is.
The 4th amendment is not a prohibition on collection of information about someone. It's a prohibition of violating the sanctity of your home and person to collect that information: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
The beauty of the modern world is that the government does not have to violate the sanctity of your home or person to get tons of information about you. You freely give it away: to Google, AT&T, Facebook, etc. Nothing about the 4th amendment prohibits them from going and asking these entities for information they have about you or that you have shared with them.
I get the legal argument. I'm saying that from a "spirit of the law" perspective, the intent of the 4th is to protect citizens from having their government search through their personal effects without probable cause.
This is much like if the NSA had an agent whose job it was to go through bank strongboxes - all of them - examining the contents and looking for things that are illegal. It is the bank's security that is violated, not your own, but it's still your "papers and effects" that are not secure against unreasonable searches.
I completely understand the judicial argument that has been made amounting to "Welp, it's on Google's servers, you don't have any right to control it anymore", but as far as the spirit of the Constitution goes, that's complete bunk, and I think that any reasonable, average person would agree with that sentiment. My data, stored on Google's servers, is mine, and is entrusted to them for safekeeping.
The government has managed to finagle its way into an interpretation of the Fourth that utterly defangs it. The purpose is "Hey, you can't go through peoples' stuff without judicial oversight", and that is clearly being violated as a matter of routine.
I think you're mistaken about the "spirit" of the 4th amendment. First, the spirit of the Constitution must be read consistently with that of English common law, which means that pretty much any information is accessible with a warrant or subpoena pursuant to court order. To the extent that the NSA is collecting information pursuant to court orders (e.g. CDR's) that's a very relevant point. The "spirit" of the law is that courts can authorize getting at pretty much any information.
Second, you're wrong about the "spirit" of the 4th amendment being about the government not searching through your stuff. It's about not violating the sanctity of your home or person to do so. That's a very key distinction. Even in 1802, the government could, pursuant to a court order or even just consent, search through "your stuff" that you had left for safekeeping at a friend's house.
I have no issue with information being accessible under the right legal framework. Court orders, warrants, sure, go nuts. But the whole idea behind that framework is "you have to actually have a valid reason for getting this data", as opposed to "you can look at whatever you want and make up your mind about why you want it after the fact".
I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps. If that's the case, then welp, all bets are off. I don't think that's the case, though - if it has happened, it is almost certainly under some sort of coercion, at which point it's very difficult to argue that this data is being given with free consent, and we're back to it effectively being seized via "consent" given under duress (which any court would strike down as not being consent at all!)
Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person. I would like to know how that is reconciled with modern legal interpretations - that seems like a big gaping hole to be filled.
Maybe I'm just naive and want to believe that things are better than they are. Maybe Google et al have just rolled over and happily handed over data. I really have a hard time believing that's the case. In either case, though, we have allegations of our government conducting wide-scale spying on its own citizens, by means of the seizure of those citizens' supposedly-private communications. Given a country that is supposed to uphold the values of liberty and individual freedom, that is extraordinarily distressing.
> I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps.
Duress is not coextensive with coercion. Consent can be valid even if it involves leverage (e.g. no government contracts for you unless you consent).
> Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person.
4th amendment interpretation does make the logical analog between "papers" and "files" or "data." But information that you've given over to others (e.g. files stored in your Drop Box) or information that was not even generated by you (e.g. server logs, call data records) is not your "personal data" whether it's ink on papyrus or bits.
What's tripping you up is the illusion of "network transparency." You might think of your gdrive as the same as your hard drive, but of course it's not. The difference between the two is nothing less than keeping information about your finances in your desk (where the 4th amendment protects it), and keeping that information in your accountant's office (where the 4th amendment does not protect it).
> The 4th amendment is not a prohibition on collection of information about someone. It's a prohibition of violating the sanctity of your home and person to collect that information.
There's actually considerable current debate (and it will no doubt accelerate with the recent revelations) over the extent to which the "persons, houses, papers, and effects" part of the Fourth Amendment extends beyond ones physical body and tangible property, but its eminently clear that it does because the 4th Amendment is the basis of the general requirement of warrants for wiretaps, even when the wiretaps do not involve a "physical penetration of a constitutionally protected area". [1]
