The Battle Against Broadly Written Court Orders And Warrants Goes All The Way Back To 1760

from the older-than-heated-BBS-discussions-even dept

Tue, Jul 2nd 2013 9:27am — Tim Cushing

Ed Snowden's story kicked off with the leak of a single, 4-page court order that granted the NSA and FBI access to millions of Verizon phone records. Signed by Roger Vinson of the FISC, it was a broadly written order that contained none of the expected constitutional protections extended to US citizens.

Whistleblowers and government overreach are nothing new in this country. Snowden gave up his job and left the US in order to expose wrongdoing. Before him, other whistleblowers have done the same, either quitting in order to take their findings public or being forced out of a job as a result of their actions.

The ACLU's Free Future blog recently featured a post detailing how far back this sort of thing goes -- all the way back to before the official formation of the United States.

Do you know about James Otis, his struggle against the British Empire, and the making of the Fourth Amendment? A brilliant, young attorney, Otis became practically obsessed with what he viewed as a profound injustice visited upon the American colonists by their British rulers: the writs of assistance.

Writs of assistance were essentially general warrants. They allowed British soldiers to raid and search homes based on no suspicion whatsoever of criminal activity. Any soldier could violate the sanctity of anyone’s person or home... The writs of assistance were extreme violations of the basic privacy and property rights of Americans, and the American revolutionaries loathed them – no one more eloquently or passionately than Otis.

James Otis ditched his job to fight this injustice. Despite being only 31, he held the position as Advocate-General in the commonwealth of Massachusetts. His position meant arguing for these general warrants, something he couldn't do in good conscience. He resigned his post and took up a case representing (pro bono) a group of Boston merchants opposed to the warrants.

The young attorney’s five-hour oration railing against the writs of assistance, “in opposition to a kind of power, the exercise of which in former periods of history cost one king of England his head and another his throne,” is now a famous speech...

Specific warrants describing the people, places or things to be searched, and sworn by an affirmation, are legitimate and legal, Otis said. But general warrants, those that do not require any specific information or targeting – those warrants that enable the government to search at will – are illegal.

Unfortunately, Otis lost the case. Fortunately for the US, John Adams was sitting in the courtroom. Otis' arguments formed the basis for the Fourteenth Amendment to the Massachusetts Declaration of Rights (written by Adams), which in turn inspired the Fourth Amendment to our Constitution.

This amendment is being abused by the NSA's and FBI's sweeping data requests. It gives them the ability to digitally ransack American citizens, without a warrant or probable cause. It may be legal, thanks to some very dubious secret laws, interpretations and complicit courts, but it's still unconstitutional. Any hopes that the Supreme Court will sort this out have been effectively nullified as the court finds itself bound in the same web of secrecy.

Otis lost his battle but paved the way for our Constitutional rights. Why did he give it all up to take on the system?

“The only principles of public conduct that are worthy of a gentleman or a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country,” he told the court.

Snowden himself may lose this battle, but hopefully, his actions will help Americans regain the rights they never realized they had given up.

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Filed Under: 4th amendment, court orders, surveillance, warrants

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Anonymous Coward, 2 Jul 2013 @ 9:38am

Then and there the child independence was born
Didn't see the quote in the article, so thought it was worth pointing what John Adams said about Otis' argument in the Writs of Assistance case:

Then and there the child independence was born.

The Old State House, where the case was argued, is a landmark in the National Historical Park in Boston.
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Anonymous Coward, 2 Jul 2013 @ 9:38am

The battle against a lot of what the federal government has been doing goes back to the 18th century. The revolutionaries fought against what they believed was an overbearing imperial government with no respect for its own people. Now the federal government has becoming an overbearing imperial government with no respect for its own people.
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wec, 2 Jul 2013 @ 9:44am

What people need to learn and remember is the Supreme Court is no longer the upholder and Interpreter of the Constitution. FISC is and its Interpretations are secret.
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Anonymous Coward, 2 Jul 2013 @ 10:29am

The more things stay the same
From Otis's words:
we hear the greatest monarch upon earth declaring from his throne ... that the privileges of his people are dearer to him than the most valuable prerogatives of his crown

Sounds like the platitudes that our presidents have been giving us.
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McCrea (profile), 2 Jul 2013 @ 10:34am

Re: Then and there the child independence was born
Here and now may the child independence rest in peace.
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Vidiot (profile), 2 Jul 2013 @ 11:22am

Not funny in Guam?
Seriously? Guam has an Attorney General, and he's considered to be one from "23 states"? I call foul -- what about Puerto Rico, patiently waiting to be our 51st state? I hope failure to sign on to this initiative doesn't hurt PR's chances for statehood. No more jocularity for the PR AG; how do you say "sourpuss" in Puerto Rican?
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Vidiot (profile), 2 Jul 2013 @ 11:23am

[Whoops... posted to wrong story... how did that happen?]
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Anonymous Coward, 2 Jul 2013 @ 11:59am

Re: Re: Then and there the child independence was born
I would argue that it is far from resting and certainly isn't in piece. It is growing weary and angrier by the day. It may have been resting but certainly now is awake and watching as things unfold.
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McCrea (profile), 2 Jul 2013 @ 2:22pm

Re: Re: Re: Then and there the child independence was born
No, it is dead. Independence is no more.
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Anonymous, 2 Jul 2013 @ 3:24pm

Re:
One would think that more people would eventually learn a lesson about government and become anarchists. Unfortunately, mankind isn't all that good at lesson learning, and governments are formed by those who believe they are better than everyone else and crave power over others.
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