The 3rd Amendment, becoming more important than ever

“Since the general civilization of mankind, I believe there are more instances of the abridgment of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.” — James Madison, Virginia Ratifying Convention, 1788

From the earliest days of the Colonies, Americans fought to guarantee their privacy from an intrusive government. As a consequence the Founders included the third amendment in U.S. Constitution. Given the pervasiveness of modern surveillance technology, however, the third amendment may not be the guarantor of personal liberty and freedom the founders hoped it would.

While the U.S. Constitution does not explicitly include the right to privacy, using third, Fourth and the Fifth Amendments to the Constitution the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion. ( https://en.wikipedia.org/wiki/The_Right_to_Privacy_(article) )

The English were so suspicious of standing armies they feared the concentrations of soldiers in barracks might pose military threats to the people’s liberties. Thus, they concluded that if they had to have an army, it must be scattered among the populace and housed preferably in inns, alehouses, stables, and private homes.

The Constitution was written when acts like The Quartering Act of 1765 required the colonies to house British soldiers in barracks provided by the colonies. If the barracks were too small to house all the soldiers, then localities were to accommodate the soldiers in local inns, livery stables, ale houses, victualling houses, and the houses of sellers of wine. Should there still be soldiers without accommodation after all such “publick houses” were filled, the colonies were then required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings as shall be necessary.

The third amendment to the U.S. Constitution reads as follows:

“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”

For the longest time the Third Amendment seemed to have little constitutional relevance; indeed, not only has it been the least litigated amendment in the Bill of Rights, but the Supreme Court has never decided a case on the basis of it. However, the fact that Great Britain, from where many American ideas regarding personal liberty and freedom arose, is becoming the most surveilled country in the world is disturbing to say the least. In real time, a NEC algorithm can compare people caught on film to a database of 500,000 “suspects” whose biometric parameters have been recorded while in police custody in the UK.

While widespread surveillance in the U.S. is still in it’s infancy NEC America Vice President of Federal Operations, Benji Hutchinson, confirms interest in facial recognition systems by local law enforcement in the U.S. is growing.

I can’t say which ones, but it’s been the large cities that you might imagine. It’s some of the large coastal areas,” Hutchinson says. “Some of those cities have expressed interest because they want to manage crime more effectively, or they want to manage counter-terrorism efforts.

Surveillance States always arise in reaction to a threat of terrorism. Perhaps the most iconic example of mass surveillance is George Orwell‘s 1949 novel Nineteen Eighty-Four, which depicts a dystopian surveillance state (Oceania) created “to protect” it’s citizens from all types of evil. ( https://www.youtube.com/watch?v=S6psBoDDJUo ) , like an invasion from the State of Eurasia!

Georgetown University researchers have released a report warning of the potential dangers and ineffectiveness of the beginnings of routine facial recognition scanning by certain airlines at a handful of airports nationwide.

The report, comes on the heels of a related 2016 report showing that half of Americans’ faces are already in a facial recognition database.

Facial-scanning pilot programs are underway at six American airports — Boston, Chicago, Houston, Atlanta, New York City, and Washington DC. More are set to expand next year.

With the expansion of the terrorist threat in Europe, ensuring safety in public places has become a priority for local and national authorities. Railway stations, airports, sports venues… many places have become potential targets and have adopted surveillance technologies. Facial recognition technology is booming: a 2016 report by Frost & Sullivan valued the sector at $1.48 billion in 2012, and estimated it will be worth $6.15 billion in 2019. NEC estimates that in the coming decade, it will reach $20 billion.

In the UK the British Security Industry Authority (BSIA) estimated there are up to 5.9 million closed-circuit television cameras in the country, including 750,000 in “sensitive locations” such as schools, hospitals and care homes.

The International Biometric Group, a New York City-based consulting firm, reports that the worldwide market for biometric devices grew 67 percent last year to reach $1.2 billion. Analysts estimate a further expansion to $4.6 billion. The largest share of that money (48 percent) goes for fingerprint recognition systems, followed by facial recognition (12 percent).

In Nanchang, the provincial capital of China’s Jiangxi Province, a man was arrested by police using a facial recognition system. He was captured while attending a Jacky Cheung concert. According to police the 31-year-old, identified only as Ao, was wanted by the police in Zhangshu, a city in the center of the province, due to involvement in an “economic case”. They located the man in the auditorium at the very beginning of the concert by means of a facial recognition system installed at the the entrance to the venue.

According to Beijing Capital International Airport, a smart passenger security system based on facial recognition has been launched to increase the speed of security checks. ( https://www.facefirst.com/industry/airport-face-recognition-system/?gclid=EAIaIQobChMIuvnpwfyI2wIVEgOGCh2djQx3EAAYASAAEgKg6vD_BwE )

The system can automatically link passengers with their information. The smart system can finish the security checks of 266 people per hour — about 100 more than the traditional security check system.

Since the global surveillance disclosures in 2013, initiated by ex-NSA contractor Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW, and GCHQ have engaged in mass, global surveillance. “Now that Google and AT&T can track us more closely than any N.S.A. agent, it appears that the Madisonian Constitution may be inadequate to defend our privacy and dignity in the 21st century.

“Perhaps even Madison…might have realized that our rights to enjoy liberty, and to obtain happiness and safety at the same time, are threatened as much by corporate as government surveillance.” ( http://faculty.uml.edu/sgallagher/harvard__law_review.htm )

The individual’s right of domestic privacy — that people are protected from governmental intrusion into their homes; and it is the only part of the Constitution that deals directly with the relationship between the rights of individuals and the military in both peace and war — rights that emphasize the importance of civilian control over the armed forces. Some legal scholars have even begun to argue that the amendment might be applied to the government’s response to terror attacks and natural disasters, and to issues involving eminent domain and the militarization of the police.

Currently the biggest danger is that surveillance technology will be used for general, suspicionless” surveillance. When someone is out in a public space they are surrendering their right to privacy. State motor vehicles agencies already possess high-quality photographs of most citizens that are a natural source for face recognition programs that could easily be combined with public surveillance or other cameras in the construction of a comprehensive system of identification and tracking.

The process by which the Supreme Court has made certain fundamental liberties, protected by the Bill of Rights, applicable to the states is known as the doctrine of incorporation, however this doctrine may be of little help to Americans in public places in the 21st century.

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Notes:

  1. https://harpers.org/blog/2008/01/madison-on-gradual-encroachments-against-freedom/
  2. https://www.history.com/this-day-in-history/parliament-passes-the-quartering-act
  3. https://www.biometricupdate.com/201805/npr-explores-u-s-law-enforcement-interest-in-real-time-facial-recognition
  4. https://arstechnica.com/tech-policy/2017/12/facial-recognition-at-us-airports-becoming-routine-researchers-warn/
  5. https://www.euractiv.com/section/data-protection/news/facial-recognition-gains-grounds-in-europe-among-big-brother-fears/
  6. https://www.telegraph.co.uk/technology/10172298/One-surveillance-camera-for-every-11-people-in-Britain-says-CCTV-survey.html
  7. http://www.ecns.cn/2018/04-11/298786.shtml
  8. https://www.nytimes.com/2014/01/19/opinion/sunday/madisons-privacy-blind-spot.html
  9. https://www.aclu.org/issues/privacy-technology/surveillance-technologies/face-recognition-technology

Originally published at neutec.wordpress.com on May 15, 2018.

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