The Battle Against Broadly Written Court Orders And Warrants Goes All The Way Back To 1760

from the older-than-heated-BBS-discussions-even dept

Ed Snowden's story kicked off with the leak of a single, 4-page court order that granted the NSA and FBI access to millions of Verizon phone records. Signed by Roger Vinson of the FISC, it was a broadly written order that contained none of the expected constitutional protections extended to US citizens.

Whistleblowers and government overreach are nothing new in this country. Snowden gave up his job and left the US in order to expose wrongdoing. Before him, other whistleblowers have done the same, either quitting in order to take their findings public or being forced out of a job as a result of their actions.

The ACLU's Free Future blog recently featured a post detailing how far back this sort of thing goes -- all the way back to before the official formation of the United States.

Do you know about James Otis, his struggle against the British Empire, and the making of the Fourth Amendment? A brilliant, young attorney, Otis became practically obsessed with what he viewed as a profound injustice visited upon the American colonists by their British rulers: the writs of assistance.

Writs of assistance were essentially general warrants. They allowed British soldiers to raid and search homes based on no suspicion whatsoever of criminal activity. Any soldier could violate the sanctity of anyone’s person or home... The writs of assistance were extreme violations of the basic privacy and property rights of Americans, and the American revolutionaries loathed them – no one more eloquently or passionately than Otis.

James Otis ditched his job to fight this injustice. Despite being only 31, he held the position as Advocate-General in the commonwealth of Massachusetts. His position meant arguing for these general warrants, something he couldn't do in good conscience. He resigned his post and took up a case representing (pro bono) a group of Boston merchants opposed to the warrants.

The young attorney’s five-hour oration railing against the writs of assistance, “in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne,” is now a famous speech...

Specific warrants describing the people, places or things to be searched, and sworn by an affirmation, are legitimate and legal, Otis said. But general warrants, those that do not require any specific information or targeting – those warrants that enable the government to search at will – are illegal.

Unfortunately, Otis lost the case. Fortunately for the US, John Adams was sitting in the courtroom. Otis' arguments formed the basis for the Fourteenth Amendment to the Massachusetts Declaration of Rights (written by Adams), which in turn inspired the Fourth Amendment to our Constitution.

This amendment is being abused by the NSA's and FBI's sweeping data requests. It gives them the ability to digitally ransack American citizens, without a warrant or probable cause. It may be legal, thanks to some very dubious secret laws, interpretations and complicit courts, but it's still unconstitutional. Any hopes that the Supreme Court will sort this out have been effectively nullified as the court finds itself bound in the same web of secrecy.

Otis lost his battle but paved the way for our Constitutional rights. Why did he give it all up to take on the system?

“The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country,” he told the court.

Snowden himself may lose this battle, but hopefully, his actions will help Americans regain the rights they never realized they had given up.