When Judge M. Blane Michael ’68 of the U.S. Court of Appeals for the Fourth Circuit delivered the 41st annual James Madison Lecture on October 20, his message boiled down to one timely and compelling question: “Can the Fourth Amendment, designed in the musty age of paper, offer meaningful privacy protection for personal electronic data?”
After being introduced by Dean Richard Revesz and Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law, Michael argued that the formative history of the Fourth Amendment, which protects citizens against unreasonable searches and seizures, should play an important role in determining its latter-day application to such thorny issues as search warrants for personal e-mail stored on a remote server. Pointing to a methodology championed by U.S. Supreme Court Justice Antonin Scalia that Michael called “the frozen-common-law approach,” in which a judge looks to the specific common law in place at the time of the amendment’s ratification to determine the reasonableness of a given search or seizure, Michael asserted that technological advances have made our personal information increasingly vulnerable to intrusive acts of government and law enforcement.
Tracing the pre-history of the Fourth Amendment, which was written after decades of search-and-seizure abuses in both the American colonies and England by British officials, Michael made the claim that this formative history indicated the amendment’s “broader purpose….to circumscribe government discretion.” By the time James Madison delivered his draft of the Bill of Rights to Congress in 1789, seven out of the 13 existing state constitutions included search-and-seizure protections.
The deeper personal-liberty concerns that gave rise to the Fourth Amendment, Michael said, are not addressed by the Scalia approach. Further, Michael argued, the amendment itself makes no reference to common-law rules; the essential fluidity and evolutionary nature of common law contradicts the idea of “freezing” common law in the eighteenth century, and the common law of the time was far from uniform anyway; law enforcement has changed drastically in both scope and power in the last two centuries, with far more extensive government involvement now; and the common-law approach offers little guidance for applying 1790s rules in the digital age.
Past Supreme Court proponents of formative history’s application, Michael continued, include Louis Brandeis, Warren Burger, Felix Frankfurter, and Potter Stewart, among others. He added that, based on the opinion in the recent case Arizona v. Gant, Justice John Paul Stevens seemed open to the formative history approach. (Scalia joined the majority in that case, but wrote a separate concurring opinion reiterating his own methodology.) Michael deemed historical purpose one of a set of interpretive tools that encompasses “text, structure, purpose, and precedent.”
Discussing contemporary Fourth Amendment-related problems including personal online files subject to murky privacy standards, computer search warrants executed broadly, and the unprecedentedly intrusive scope of government data-mining programs, Michael argued that the context of the Fourth Amendment’s drafting could offer guidance. For example, the “secret cabinets and bureaus” protecting personal papers, referenced by a lawyer in a 1765 search-and-seizure case that is part of the amendment’s formative history, are today’s remote electronic servers containing e-mails, he said.
“The mischief—the threat to liberty and privacy—that led to the inclusion of the Fourth Amendment in the Bill of Rights has not disappeared; it has only changed in form,” Michael concluded. “Thus, in confronting contemporary questions, it is more important than ever to use the Fourth Amendment’s formative history, which confirms its broader purpose of limiting government discretion. This is no time for Fourth Amendment meaning to be controlled and restricted by outdated common law rules from the founding era.”
Watch the full recording of this event (1 hr, 1 min):
Posted on October 27, 2009