Professor William Warner -- Curator's 15 minute lecture --
"Privacy at Risk: the Bill of Rights, the IVth Amendment, and the Case of Edward Snowden"

Audio of Patricia Cline Cohen Lecture -- Audio of William Warner Lecture -- Warner PowerPoint

Text of the William Warner lecture
I want to begin by thanking Sarah McCune for her vision and generosity in starting a valuable collection of primary documents surrounding the emergence of the Bill of Rights. It has been great fun to work with UCSB’s gifted and creative historian, Pat Cohen, and the great library team with whom we collaborated.
            Our exhibit is entitled “The Emergence of the Bill of Rights” because we want to foreground 3 ideas
1: the Anglo-American claim to rights has a long and dynamic history,
2: rights are vulnerable in a political crisis (whether in the American Civil War or the recent “war on terror”) but they are also put at risk by more gradual changes in media and technology,
and finally,
3: rights are a matter of concern today, because how we negotiate and litigate those rights in the present will determine what rights we have in the future.
            Our nation’s obsession with rights is coexistent with its beginning. Thus, our revolutionary tradition began when the 13 colonies demanded equal rights with the British citizens in England. For this reason, The Declaration of Independence states that the purpose and legitimacy of government hinges upon its protection of the rights of the citizen:
(let me remind you of the relevant clauses)  
“We hold these truths to self-evident that all men are created equal,
and endowed by their Creator with certain unalienable rights… 
to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,
that whenever any form of government becomes destructive of these ends,
it is the right of the people to alter or to abolish it.”
            But how were Americans to secure these rights? The first Americans placed their faith in Constitution-framing. There are key features of a Constitution, and each boosts the authority of the Bill of Rights: First, the founders subscribed to what is sometimes called the social compact theory by which constitutions provide the “fundamental law” that confers mutual obligation upon the citizens and the government that it brings into existence. Therefore, the Constitution is a body of law that is different in kind than statutes that are passed by ordinary legislatures so as to respond to more transient needs. Instead, as the legal scholar Leonard Levy notes: the word Constitution signified to Americans of the founding era, “a supreme law creating government, limiting it, unalterable by it, and paramount to it.”(8) To this day government officials pledge their loyalty not to a President or Congress, but to the Constitution.  And, whenever new rights claims are raised in this country, Americans often turn to the Constitution as a standard and guide for shaping the political and moral future of the nation.
            After working secretly for four months in the summer of 1787 in Philadelphia, the framers published the Constitution. The Federal Constitution achieved its grounding authority by surviving an arduous ratification process, one that included public defense of the Constitution, most notably in the Federalist Papers, as well as withering attacks by Antifederalists. George Mason, a member of the Constitutional Convention, and original author in 1775 of the Virginia Bill of Rights, immediately noted the deficiency in the new Federal Constitution of what eight state constitutions already had: a bill of rights. During the ratification debates, many of the Whig patriots, like Patrick Henry and Richard Henry Lee of Virginia, asked, “how can you have forged such a strong federal government after our bitter experience with the unchecked and encroaching power of the English Parliament and the British Empire?” Won’t a President inevitably turn into a King? Venerable Whig Patriots like Samuel Adams and John Hancock of Massachusetts wondered, ‘how were individuals, or groups that found themselves in the electoral minority, to protect their rights against the concentrated power of this new federal government?’ Four state ratifying conventions requested that the new Federal Congress use the amendment provision of the Constitution to add an explicit enumeration of rights of the citizens under the new Constitution.
            The first 10 amendments of the Constitution were developed as a way to meet the objections of some Antifederalists without vitiating the efficacy of the new Constitution. This is not the place to tell the fascinating story of how James Madison, who had first thought a bill of rights unnecessary, became the canny leader who steered the first amendments through the first Congress, thereby saving the Constitution from disabling revision by the Antifederalists. But, as our exhibit shows, this was only the first episode in a much longer process by which the first ten Amendments emerged as “the Bill of Rights.”
            Behind each amendment there is a story from the past and a set of questions about the future. I want to focus the rest of my brief remarks upon the IVth Amendement. It is intended to secure the privacy rights of the citizen.
I quote: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
            Although the amendment is cast in general legal terms, it also has an explicit physical definition of what it would be “unreasonable” to search or seize: ‘persons, houses, papers and effects.’ This focus is appropriate to the pre-Revolutionary complaint that is the historical antecedent of this right—James Otis Jr.’s famous 1761 condemnation of the use by Customs officials of ‘general search warrants’ to locate and prosecute the King’s subjects for trade in contraband goods. The Amendment’s rights-bearing force comes from the way it limits the state’s recourse to search or seizure: by requiring “probable cause” and “an oath or affirmation” of what is to be found and a limiting specification of “place,” “persons,” or “things.” What is protected by limited legal searches is something only named later in constitutional law, “the right to privacy.” For Warren and Brandeis, who published a classic article with that title in 1890, the right to privacy extends even to what they called “the right to be let alone.” These rights are also implicit in the common law tradition stretching back to Magna Carta, and developed with a rather colorful metaphor found in Otis’s speech: “a man’s home is his castle; and while he is quiet, he is as well guarded as a prince in his castle.” (Of course, we would add “woman’s home is her castle”)
            But what happens when the telephone is discovered so that law enforcement can remotely listen in upon, and even record, a speech spoken in a previously private space like the home? This question and the judicial answers to that question create a new branch of what comes to be called “wire-tap” law. But, over the past thirty years, developments in technology, media and politics have converged to erode our right to privacy.
Item #1: the invention and wide adoption of the personal computer and the global spread of the Internet produced this irony: the promise of information autonomy linked users into a network that opened the way to pervasive surveillance. Our access turned out to imply their access.
Item #2: the development of new social media—from Myspace to Facebook—has encouraged users to record, store and share the most intimate details of their lives, without any of the privacy protections that had been patiently developed for earlier communication systems like the postal system and the telephone. While new flavors of social are served up every day, most extend the same Faustian bargain: we will give you free services in exchange for your private information.
Item #3: the wide adoption of the smart phone has enabled unimaginably fine-grained tracking of users’ physical movement and information profile.
And finally, Item #4: in the wake of 9/11, the Patriot Act legalized real-time surveillance of the citizen by the government without any clearly defined limit upon that surveillance.
            There are signs that the last ten years have left American increasingly resigned to the loss of our privacy rights. In 2003, Admiral Poindexter, acting as head of DARPA’s Information Awareness Office, promoted an Orwellian project for what he called “Total Information Awareness.” It involved the aggregation of an expanding set of databases, so searches could return terrorist suspects. [SIDE] The scheme was promoted under a logo with an “all seeing eye,” the eye of an all-knowing God, which is also featured in the symbols of the Masons and upon the US dollar bill. [SLIDE] The “all-seeing eye” was linked to the eye of God, the very thought of whose gaze was supposed to have moral effects. Here it is reduced to the surveillance of government. DARPA’s Latin slogan—Scientia est Potentia, “knowledge is power”—is lifted from Francis Bacon’s 1605 book, The Advancement of Learning. Poindexter’s 2003 plan caused revulsion, was widely condemned as “un-American,” and was defunded by Congress. However, a decade later, all its aims have been realized through secret NSA ‘programs.’  After the synergistic effects of technology and terror, secret government programs and personally targeted Internet ads, it is appropriate to ask of the IVth Amendment: what is left of “unreasonable searches and seizures”, of “probably cause,” and specific “persons, places, things.” What in short is left of “the right to privacy?”    
            Responding to this question is so easy matter. At this juncture in our nation’s history, the two most central purposes of government appear to have come into conflict with one another: On the one hand, the government’s responsibility to uphold the “unalienable” rights of the citizens; and on the other, the national security imperative to protect citizens from harm. How, in short, are we to reconcile the security we need with the liberty we love?
            We can trace this conflict in the case of Edward Snowden’s exposure of secret NSA surveillance. Whatever your assessment of his motives and actions, it is difficult to come away from listening to the statements he has made, from temporary asylum in Russia, without acknowledging his passionate commitment to this country and its Constitution.  [SLIDE] When asked about his motives in disclosing the surveillance operations of the NSA, Snowden responded,
“I don't want to live in a society that does these sort of things... I do not want to live in a world where everything I do and say is recorded... My sole motive is to inform the public as to that which is done in their name and that which is done against them.” [171]
When asked what he hoped to achieve through his disclosures, he shifted responsibility for action from himself onto the American people: [CLICK]
“For me, in terms of personal satisfaction, the mission’s already accomplished. I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself. All I wanted was for the public to be able to have a say in how they are governed.[45]”
            Snowden’s provocative acts leads to this question: Is Edward Snowden, as his critics insist and one court has found, a traitor who has disclosed to enemies the secret of our nation’s counter-terrorism methods? Is he a naïve idealist gone rogue?
Or, as a recent New York Times editorial and 2 court decisions suggest, is Edward Snowden a whistle blower who should be praised for using First Amendment rights to freedom of speech and the press to expose illegal government NSA surveillance of its law-abiding citizens?
Only through the public discussion of questions like these, can citizens and courts determine what will become of our IVth Amendment right to privacy.
[Thank you]