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Friday, December 13, 2013

"Bah Humbug!" or: Another Paper on the Third Amendment in Cyberspace

Via Frank Pasquale's Twitter, I learned about a paper by Steven Friedland on applying the Third Amendment to government practices of mass surveillance. The title of the paper is, The Third Amendment, Privacy and Mass Surveillance. Here is the abstract:
We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow.

The growing surveillance society is not necessarily harmful or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs, to identifying and thwarting potential terroristic conduct and threats at an embryonic stage.

Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. A sitting Secretary of State even recently acknowledged that the government has “sometimes reached too far” with its surveillance. The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain.

This paper argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law.

Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities on and around private residences or businesses in an intrusive way – or using proxies to do so -- that would serve as the functional equivalent of military quartering in the civil community.
The Third Amendment states:
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
I blogged a while back about another article that attempted to apply the Third Amendment to the government's digital actions. That article was Alan Butler's, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy, 62 Am. U. L. Rev.. 1203 (2013).

In my post on Butler's paper, and in my following post questioning whether law journals should publish scholarship on the Third Amendment, I was very critical about attempts to apply the Third Amendment to the digital world because of the Third Amendment's specific terminology of "soldier," "quartered," and "house."  I am of the opinion that attempts to apply the Third Amendment to digital surveillance stretches the meaning of the amendment far beyond what its text allows.

After reading Friedland's paper, I am confident that all of my criticism of Butler's paper applies to Friedland's attempt to apply the Third Amendment to the NSA's surveillance practices.  I think that Friedland's notably shorter paper makes even less of an effort to justify the overly broad interpretations of the Third Amendment than Butler's article.  And Butler's article was at least innovative in applying the Third Amendment to the government's digital actions -- Friedland's paper is not, because it is entirely pre-empted by Butler's article-- something that Friedland seems to belatedly acknowledge in his penultimate footnote:
A recent commentator has provided the Amendment with a similar construction. See Alan Butler, When Cyberweapons End Up on Private Networks: Third Amendment Implications for Cybersecurity Policy, 62 AM. U. L. REV. 1203 (2013).
The only novel contribution Friedland's paper seems to make is to note that Butler's arguments may apply to NSA practices that have been leaked since Butler's article was published.  If this paper is sent out for publication, I hope that articles editors pay attention to the footnotes, and note that Friedland's (questionable) argument has already been made in much more depth.

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