Archive for the ‘writ of assistance’ Category

Privacy in the Modern Age, Part 1

PrivacyInTheModernAge_1   <– PDF


The Fourth Amendment to the U. S. Constitution reads:

“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 probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This particular Amendment was to ensure that one abuse, among others, that had been inflicted the colonists by the British government could not be repeated under the Constitution: the infamous ‘writ of assistance’.  The historian John Fiske [1] gives a summary:

“In 1761, it was decided to enforce the Navigation Act, and one of the revenue officers at Boston applied to the superior court for a “writ of assistance”, or general search warrant, to enable him to enter private houses and search for smuggled goods, but without specifying either houses or goods.  Such general warrants had been allowed by a statute of the bad reign of Charles II, and a statute of William III, in general terms, had been granted to revenue officers in America like powers to those they possessed in England.  But James Otis showed that the issue of such writs was contrary to the whole spirit of the British constitution.  To issue such universal warrants allowing the menials of the custom-house, on mere suspicion, and perhaps from motives of personal enmity, to invade the home of any citizen, without being held responsible for any rudeness they might commit there, – such he said, was ‘a kind of power, the exercise of which cost one king of England his head and another his throne;’ and he plainly declared that even an act of Parliament which should sanction so gross an infringement of the immemorial rights of Englishmen would be treated as null and void.”

James Otis was a Boston lawyer, and one of the principal proponents of independence in the 1760’s.  He was in declining mental health and suffered permanent injury in 1769 after being severely beaten by a British customs officer.  However, he was able to sneak out of his house and fought against the British in the Battle of Bunker Hill (17 Jun 1775), escaping afterwards back to his house.

The Fourth Amendment requires any agent of the government to apply for a warrant, to be sworn under oath before a judge, describing what is to be searched and what evidence they have already obtained that would justify such a search.  It has always been a feature of American justice, at least at the local level, with two exceptions: it never applied to slaves, and it did not apply to free black people in the South during the Jim Crow era (1890’s to about the 1940’s).  The Democratic Party was an advocate for slavery and later was responsible for Jim Crow.

But we now have three problems not contemplated by the authors of the Constitution.  First is the growth of electronic technology; secondly, the power of corporations that control the electronics technology; and third, the union of those corporations and the government.  At this point in our history, the average American, unless he practices good electronic security, has virtually no privacy at all.  The following essays will describe these risks, and what you, the average American, can do to protect your privacy in the digital environment that we now wallow in.

But before we get to details, let’s first establish how the Fourth Amendment should be interpreted, and by extension, how we should think of individual privacy.  To me it means different things in the three cases I’ve mentioned.  Toward the government alone (case 1) it means, “My affairs are none of your business unless you have prior evidence that justifies investigation.”  Toward corporations, and the cooperation between corporations and the government (cases 2 and 3) it means, “My affairs are none of your business.”

There is one cardinal rule that we should remember in regard to privacy in the electronic environment: if a violation of your privacy is possible, it is being done unless the government and corporations prove under oath that it is not.  Even then, take their claims with a grain of salt.


[1] John Fiske, John Fiske’s Historical Writings, NY: Houghton, Mifflin and Company, 1896, Vol. 10, p. 14.  It is the same as Fiske’s original The American Revolution, 1891, Vol. 1, p. 14.

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Warrantless Searches of Cell Phone Data

WarrantlessSearchesOfCellphoneData  <== PDF version

A report by from 19 Apr 2011 discusses a practice sanctioned by the Michigan State Police in which officers are equipped with a scanning device that allows them to download all the information contained on a cell phone, including pictures, calling history, and texts.  Apparently the State Police are allowed to extract all this data from the cell phone of anyone stopped for minor traffic violations.  The ACLU has so far been unsuccessful in finding out what the rules of engagement are, that is, under what circumstances the police actually collect the data, and what it is subsequently used for.

This only shows how far away we have gotten from the Fourth Amendment to the U. S. Constitution (and mirrored by Article I, section 11 of the Michigan state Constitution), which requires a search warrant signed by a judge and supported by an oath in order to conduct a search, with a few exceptions.  Apparently the Michigan State Police are both officers and judges, since they apparently can determine entirely on their own when a search is “justified”.

Historically, the Fourth Amendment arose after the ratification of the U. S. Constitution in order to ensure that the new federal government did not commit the same abuses against the people that had provoked the Revolutionary War only 30 years earlier.  (The Fourth Amendment was not proposed until 25 Sep 1789, and was not ratified by the states until 15 Dec 1791.  It was not part of the original Constitution, which was ratified by the required ninth state, New Hampshire, on 21 Jun 1788.)   The provocation I am referring to in 1761 was the imposition of “writs of assistance” by the British crown upon the people of Massachusetts.

The “writ of assistance” was first established by the British under Charles II.  The main purpose was to aid enforcement of the revenue laws.  They were issued by the British Chancellor of the Exchequer (similar to our Secretary of the Treasury) to any officer of the crown.  The writ required everyone who was employed in any commerce to cooperate with crown officials to make sure the revenue laws were being obeyed, that is, to ensure duties and excises were being paid, and to suppress smuggling.  But, in practice, they were not limited to just operators of customs houses; they applied equally to every person in the colony.  They allowed any officer of the crown to conduct a search of any person or premises, without any evidence that any violation of the revenue laws had been committed. Naturally, such a power is easily abused.  It is worse than that: they demand abuse, and even if not abused, are a violation of the basic principles of privacy and presumption of innocence.  These writs had the effect of turning everyone into a revenue agent of the crown; they could not be challenged; the motivation for a search could not be examined; they subjected everyone to the arbitrary caprice, prejudice, or malice of any minor clerk in the department of revenue.  A Massachusetts lawyer named James Otis stated his opposition to the writs in a hearing in Boston in February of 1761, when the writs were being reviewed.  He asserted that Parliament had no power to establish such a writ; that they are null and void because no act of Parliament against the constitution is legitimate.

But the chief justice of Massachusetts at that time, Thomas Hutchinson, permitted the writs to be valid and enforceable in Massachusetts.  These later turned out to be a major factor in the cause of independence from Great Britain.

In retrospect, one has to give the British their due.  At least the Chancellor of the Exchequer took the time and effort to issue a writ of assistance to enforce a particular law.  In the state of Michigan, in 2011, we have rank-and-file police officers conducting searches as they please, without regard for any law or the Constitution that they allegedly took an oath to uphold. 

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