Georgetown Law Journal Articles on Privacy and Civil Liberties
There are a couple interesting articles in the latest issue of the Georgetown Law Journal: “Is Privacy a Woman?” and “When is a Search not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping.”
The title of “Is Privacy a Woman?” (pdf) by Jeannie Suk, Assistant Professor of Law at Harvard, is a riff off of Justice Scalia’s opinion in Kyllo v. United States, 533 U.S. 27 (2001). In Kyllo, the Supreme Court held that law enforcement use of a thermal imaging device to surveil and gather details about a private home is a “search” under the Fourth Amendment and presumptively unreasonable without a warrant. Scalia’s opinion said, “in the sanctity of the home, all details are intimate details,” and he noted the concern that technological advances would leave the homeowner at the mercy of “imaging technology that could discern all human activity in the home.”
Suk takes her thesis from Justice Scalia’s majority opinion and says:
In any event, Justice Scalia speculated, the heat-sensing device might well disclose intimate information — such as “at what hour each night the lady of the house takes her daily sauna and bath.” This far-fetched figure of the imagination is apparently intended to evoke private acts that people care to hide from public view. [...]
This anachronistic language thus calls to mind more than the privacy interests of a lady bathing. It also evokes the privacy interest of the man entitled to see the lady of the house naked and his interest in shielding her body from prying eyes. Privacy is figured as a woman, an object of the male gaze.
The lady in the bath thus pits old against new, anachronism against futuristic technology. She is a figure for values of old-fashioned privacy under threat. Privacy is a woman — not just a woman, but a lady — imagined as domesticity in a well-ordered traditional marital home. Justice Scalia invites us to “see” a thermal image of this lady. We become invited voyeurs. Her sybaritic form is revealed to show the need to keep her hidden from view. [...]
Justice Scalia’s Kyllo reveals the lady in the bath to illustrate the imperative to shield her. The result in turn reveals the idea of the home from which the home privacy in mind is derived.
In ”When is a Search not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping” (pdf), Georgetown law student Josh Dugan connects the Third Amendment (civilian quartering of soldiers) with the Fourth Amendment (search and seizure) to the NSA’s warrantless wiretapping program.
There have been numerous questions raised about the legality of (pdf) the NSA’s warrantless wiretapping programs since the New York Times revealed one program in December 2005. Recently, a whistleblower reported that the NSA (possibly in a separate program) gathered all the domestic communications of Americans (phone calls, faxes and more), and the agency combined its phone data with financial records, such as credit card info.
Dugan believes the Third Amendment “prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military.” It’s an interesting argument.
[T]he debates about quartering illustrate an agreement between the warring Federalists and Anti-Federalists that individuals should be free from such military intrusions. The term “any house” –– ultimately codified in the Third Amendment –– was not a narrow exception to the general rule that soldiers could intrude into civilian life; rather, it represented an expansive definition of the civilian’s right to be free from such intrusions. [...]
In short, the peacetime proscription against quartering troops is a categorical ban on soldiers enforcing law against civilians in all areas in which private citizens may exclude others. Conversely, the Third Amendment gives Congress blanket authority to allow the military to enforce laws in these areas during time of war. This reading, I argue, helps to make sense of the Amendment’s place in the larger constitutional scheme, creating a strong division between civil and military power. In particular, it provides a foundation for the Third Amendment’s protection against quartering in light of the other law enforcement provisions of the Bill of Rights. Most significantly, it complements the Fourth Amendment’s ban on unreasonable searches and seizures –– a protection that would render the Third Amendment’s proscription redundant were it merely protecting individuals against having their homes seized by soldiers. Because the history of the Fourth Amendment indicates that it was meant to apply to only unreasonable searches and seizures conducted by civilian officials, the Third Amendment’s originally intended protection against the military conducting these activities is both consistent with and complementary to the Amendment that immediately follows it.
When viewed in this light, I argue that the Third Amendment has significant implications for contemporary political and constitutional debate. In particular, the protection against quartering raises serious constitutional questions about the ability of the President to authorize the National Security Agency (NSA) to intercept communications of individuals living in the United States. Because an NSA official fits the definition of “soldier” in the Third Amendment, courts that have contemplated this problem, so far, are wrong to analyze it under the Fourth Amendment and instead should analyze warrantless wiretapping under the Third.
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