Piece by piece, the government is dismantling the Bill of Rights. The latest blow came this week when a federal district court in Virginia ruled that a defendant has no “reasonable expectation of privacy” in regard to his or her personal computer, the modern equivalent of papers and effects.
The ruling stems from the FBI investigation of Playpen, a hidden services site hosting child pornography. Playpen was seized by the government in 2014 and used to distribute malware to people visiting the site. The malware collected information from personal computers and sent it to the government to be used in prosecutions.
According to an amicus brief filed by the Electronic Frontier Foundation, the government failed to use “scrupulous exactitude” required by the Constitution when it obtained a single warrant and used it to surreptitiously place code on thousands of computers. The warrant did not, as required by the Fourth Amendment, describe “the place to be searched, and the persons or things to be seized.”
“The implications for the decision, if upheld, are staggering: law enforcement would be free to remotely search and seize information from your computer, without a warrant, without probable cause, or without any suspicion at all,” writes Mark Rumold for EFF.
The Virginia ruling represents a microcosm of a larger effort by the government to destroy privacy and violate the spirit and the letter of the Fourth.
“All of your private communications, all of your transactions, all of your associations, who you talk to, who you love, what you buy, what you read, all of these things can be seized and then held by the government and then searched later for any reason, hardly without any justification, without any reason, without any real oversight, without any real accountability for those who do wrong,” NSA whistleblower Edward Snowden told NBC’s Brian Williams in 2014.
The state has chipped away the Fourth piece by piece. In 2013, the Supreme Court ruled citizens cannot challenge government wiretapping laws, in particular the unconstitutional Foreign Intelligence Surveillance Act of 1978 and, more recently, the FISA Amendments Act of 2008.
“FISA gives the government unchecked authority to snoop on all Americans who communicate with any foreign person, in direct contravention of the Fourth Amendment,” Andrew Napolitano wrote in December, 2012. “The right to privacy is a natural human right. Its enshrinement in the Constitution has largely kept America from becoming East Germany.”
The ruling on computer privacy follows a blow delivered by the Supreme Court earlier this week. In Utah v. Strieff, the court decided the exclusionary rule does not apply when police make illegal stops, a direct violation of the Fourth. The ruling reversed Mapp v. Ohio, a 1961 decision that the exclusionary rule applies to the states and as a result state prosecutors cannot use evidence gained illegally to obtain convictions.
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