Doubtless, the founders of America— a notably prescient group — anticipated that one day it would be possible to come into your home via fiber-optic wires, view your correspondence without touching it, and slip out the electronic equivalent of the back door, unnoticed.
Or maybe not. If they had, perhaps they wouldn’t merely have granted us security over our persons, houses, papers, and effects, but also our servers, phones, routers, and tablets. But, remember, these were primitive philosophers. So far as I know, Ben Franklin never even owned a pager.
When considering your 4th Amendment rights, we should be a bit abstract. We should deal with concepts of Justice and not the particular objects of law. With this in mind, it seems to me that by whatever means you have taken my information, you have committed two violations on me.
In the first case, you have violated my home. When you come into my home against my will, whether through a pulse of radiation or a broken window, you have violated my sanctity as dearly as if you had violated my body.
Second, you have taken something from me. The wholesale copying of my email is not in character distinct from the taking of my medical records or of highly personal photographs that, let’s say, could be of medical interest. This ugly alloy of theft and voyeurism is unethical enough on pure grounds of aesthetics, for much the same reasons that looking up through a clear staircase is considered to be in poor taste. But, things grow considerably more ominous when we consider the the historic inclination of government to use citizens’ deviations from normalcy against them. For those who doubt that the good old stars and stripes would ever use your information against you, well, I take it you’ve never met anyone who made the unfortunate decision to belong to haplogroup O-47z around 1942.
Yes, two violations are at work here: The coming in and the taking out.
They are similar, but there is an important difference. Breaking into a home has historically been difficult and brutish. It requires you to pick a lock, cut through bars, break down a door, or perform some other behavior that is so viscerally violative that it would be perceived as aggression by anyone with the requisite amount of cerebral cortex required to put on a pair of sweatpants or welcome viewers to another evening of the Hannity Show.
The taking out part is much softer. Even in the days of quill and parchment, once the initial breaking of the lock was accomplished, information could be taken without much further damage. If you were to break down my door while I was away and copy ideas from my notebook, I would be furious about the first thing, but merely irritated about the second. Yet, the second is arguably the more personal violation (after all, you can hold the contents of my notebook against me), but it is the less visceral of the two. For a typical person, the coming in will always be the greater of the two evils, especially when the nature of the stolen information is not known to the victim.
In the days of the founders, and up until recently, it was substantially more difficult to go into someone’s home. The difficulty of coming in cast a color of emotion on the by-comparison gentle act of taking out. This difficulty thus afforded us some protection.
That protection is no longer in place. Nowadays, The Fourth Amendment can be violated as gently as you please any time digital information enters or leaves your home. So, perhaps an amended amendment is in order:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless we’re really totally subtle about it.”
Perhaps gentleness is a fine criterion for whether something is unreasonable or not. After all, if the copying of my secret collection of David Bowie fan fiction can help prevent a terrorist attack, it’s a small price to pay, no? And yet, it is hard to imagine James Madison or Thomas Jefferson consenting to a Fourth Amendment Exception Clause, so long as the unsecuring of papers and effects was performed by, let’s imagine, a team of trained ninjas. One visualizes an 18th century American gentleman, roused briefly from slumber by a soft rustling at the window. He does not know if it is the wind or the feline motion of the trained shinobi, but he sleeps better knowing that the President’s Intelligencers are keeping tabs on the Foul Mohammedans.
Now, suppose this were not farce. That is, suppose you live in the real world and the year is 2014. Suppose, form following function, there were a Great Bacillus in Utah calmly, gently, collecting the fact that you were reading this sentence. Would you feel outrage?
Perhaps not. In the last week, it has been revealed that the NSA collects photographs from the computers of non-targeted Americans. Your elected representatives are currently taking a stand by either affirming their nescience or promising to get around to it eventually.
Even this—even this—I could take. I admit, I’ve watched my privacy eroded for over a decade now and have not done anything. I don’t know what to do. But I thought, well, we citizens all have Orwell’s Boot on our necks. Hey, that gives us something to laugh about. Something to laugh at.
But now a new layer of farce has been added. The powers that be don’t want to be laughed at. That’s bad PR. They want to laugh along with you!
This is the new Dystopia. Invigilation with a smile.
If you don’t know what I’m talking about, well, we had a hint of it when George W. Bush hilariously hunted about the stage of the White House Correspondents Dinner looking for weapons of mass destruction. We split our sides still harder when Barack Obama joked at a State of the Union Address about how delightful it is that trains can be ridden “without the pat-down” that no doubt he and his wife and children are forced to endure whenever flying coach.
Yes, these were classic comedy moments, friends. But, new depths of comedic virtuosity were plumbed this week when the CIA twitter account, which no doubt you (or perhaps illicit weapons sales) are paying for, joked about not having your password. Ha! As if they need it! And they joked about not knowing where Tupac is. Ha! As if the CIA would ever target black people! And (get this) they joked about taking a selfie with Ellen. Isn’t it great how the disembodied voice of a fifteen billion dollar federal agency likes Ellen DeGeneres just like you and me! I wish The Central Intelligence Agency would come over for mimosas and a Sex and the City marathon some time.
This cringe-inducing burlesque is something akin to a mugger, having taken your money at knifepoint, making a joke about how you now don’t have cab fare. Such behavior alone would be bizarre enough. It would be yet more incomprehensible (and terrifying) if the mugger expected you to laugh with him. But now, consider something more staggeringly beyond the powers of your neocortex: suppose you were such a bovine dunce that you, unbidden, guffawed along at your own violation.
Go ahead and try. Try to imagine it. Hey, I’ll help you — imagine the mugger employed a staff of professional comedians.
No, still can’t do it?
Well, unlucky reader, you have a clean bill of analytical health. You lack the kuru-esque murrain afflicting, it seems, a fair number of your fellow citizens.
I am a comedian. My job is to write jokes. There is a notion, especially popular among comedians, that comedy is a force for social good. Horseshit. Comedy is no more a force for good than a knife is. It cuts well when made well, yes, but it obeys the hilt-holder.
We the people ought to be furious at these laughing muggers. And, the professional comedians who put clever words in the mouths of the powerful ought to be made to sleep with Lenny Bruce’s bones on a nightly basis.
I no longer expect to have a Fourth Amendment. I really don’t. But do I have to be a good sport about it too?