[Infowarrior] - Quartering spyware troops in the digital age

[Richard Forno]

(c/o geer)

www.usatoday.com/story/opinion/2015/03/01/constitutional-law-third-amendment-quartering-column/24220593/

Quartering spyware troops in the digital age
Glenn Harlan Reynolds 1:55 p.m. EST March 2, 2015

The Third Amendment keeps a low profile, but it is time to revisit
who and what we quarter.

  In 1893, historian Frederick Jackson Turner published a famous
  paper on the closing of the American frontier. The last unsettled
  areas, he said, were being populated, and that meant the end of
  an era.

  I think that something a bit like that is happening in my field
  of constitutional law. The last part of the Bill of Rights left
  almost untouched -- the Third Amendment -- is now becoming the
  subject of substantial academic commentary, with a symposium on
  the amendment, which I attended, this past weekend held by the
  Tennessee Law Review.

  The Tennessee Law Review published the very first law review
  article on the Third Amendment back in 1949. But there weren't
  very many to follow: a handful, over many decades. Maybe that's
  because the Third Amendment just plain works. It provides: "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."

  That doesn't happen much -- The Onion ran a parody piece some
  years ago entitled "Third Amendment Rights Group Celebrates
  Another Successful Year" -- and so it may just be that the Third
  Amendment is the only part of the Bill of Rights that really
  works. Except that it may not be working the way that we think.

  The only Supreme Court case in which the Third Amendment did any
  heavy lifting is Griswold v. Connecticut, a case that's not about
  troop-quartering, but about birth control. The Supreme Court
  held that the Third Amendment's "penumbra" (a legal term that
  predates the Griswold case) extended to protecting the privacy
  of the home from government intrusions. "Would we," asked the
  court, "allow the police to search the sacred precincts of marital
  bedrooms for telltale signs of the use of contraceptives?" The
  very idea, said the court, was "repulsive."

  Likewise, the U.S. Court of Appeals for the Second Circuit held
  in Engblom v. Carey that the Third Amendment protects a "fundamental
  right to privacy" in the home. Since then, courts haven't done
  much to flesh these holdings out, but I wonder if they should.
  In the 18th century, when the Third Amendment was drafted, "troop
  quartering" meant literally having troops move into your house
  to live at your expense and sleep in your beds. It destroyed any
  semblance of domestic privacy, opening up conversations, affection,
  even spats to the observation and participation of outsiders.
  It converted a home into an arena.

  Today we don't have that, but we have numerous intrusions that
  didn't exist in James Madison's day: Government spying on phones,
  computers, and video -- is spyware on your computer like having
  a tiny soldier quartered on your hard drive? -- intrusive
  regulations on child-rearing and education, the threat of dangerous
  "no-knock" raids by soldierly SWAT teams that break down doors
  first and ask questions later.

  The Third Amendment hasn't been invoked in these cases -- well,
  actually, it has, in the case of a SWAT team in Henderson, Nev.,
  that took over a family home so that it could position itself
  against a neighbor's house -- but maybe it should be. At least,
  maybe we should go farther in recognizing a fundamental right
  of privacy in people's homes.

  At common law, the saying was that a man's home is his castle,
  or, as William Pitt put itin 1763: "The poorest man may in his
  cottage bid defiance to all the forces of the crown. It may be
  frail, its roof may shake; the wind may blow through it; the
  storms may enter, the rain may enter -- but the King of England
  cannot enter."

  In this post-drug war era of no-knock raids, SWAT teams, and
  governmental spying, it's sad to think that we are, in fact,
  less secure in our homes than "the poorest man" in his own cottage
  was under the English kings we once revolted against. And if
  that's the case, maybe the Third Amendment isn't working as well
  as we think.

  I think that courts -- and legislators, and citizens -- need to
  work harder to protect the sanctity of the home against official
  intrusions.  We're already spied on and regulated throughout the
  day. We should, at least, be able to relax behind our own doors.

  Glenn Harlan Reynolds, a University of Tennessee law professor,
  is the author of The New School: How the Information Age Will
  Save American Education from Itself.


--
It's better to burn out than fade away.