Mourning the loss of the Fourth Amendment

Mr. Alex Kozinksi, the chief judge of the Ninth Circuit Court of Appeals and his law clerk, Stephanie Grace, penned an article on Axis of Logic mourning the death of the Fourth Amendment (which also seems to be an ongoing theme here).

“We are gathered here today to mourn the loss of a dear friend, the Fourth Amendment. Born on the freedom-loving soil of early America, the Fourth Amendment will be remembered as the bulwark of the liberty we once called privacy. For ye, we mourn.”

As you can see, we’re working on a eulogy for the Fourth Amendment, the part of the Constitution guarding against “unreasonable searches and seizures” — in effect, a privacy provision.

When did the Fourth Amendment die, you ask?

Judge Kozinski's thesis is that we are to blame for the death of the right to be left alone by our own actions of convenience. We have eroded our reasonable right to privacy by using cellphones that track our movements -- either through the use of GPS or from cell tower signals.

Through our enrollment in supermarket loyalty programs we have created a trail of purchases that los federales have access to through the use of subpoenas. Our increased use of debit cards creates electronic records of our purchases.

If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.

As I have written before, we have handed over some of our right to be left alone on a silver platter in the name of "security." We have allowed courthouses to become fortresses rather than buildings where people seek justice. We have restricted access to the people's buildings - erecting metal detectors and placing armed guards in the lobby of the state capitol building in Austin.

But there's more to the story than that. While we have certainly contributed to the demise of the Fourth Amendment by waiving our reasonable expectation of privacy in electronic communications and the like, the police, judges and legislators are the ones who struck the death blow.

Once upon a time it meant something that warrantless searches were unreasonable. Once upon a time the requirement of probable cause prevented the long arm of the state from intruding upon its citizens. But, just as if you place a frog in a pot of cold water and gradually heat it up, the frog will sit there and die without knowing what happened, we have stood and watched as the courts attacked the right to be left alone at the margins.

Terry stops. Searches incident to arrest. Protective sweeps. Exigent circumstances.The PATRIOT Act.  Implied consent. No Refusal weekends. Little by little. Bit by bit. By the time anyone caught on to what was happening, it was too late. Before you knew it, the Fourth Amendment lay dying on the ground, streams of blood trailing behind.

The Fourth Amendment died the death of a thousand cuts.