An Amendment for Privacy
Posted by Aaron Massey on 30 Nov 2015.
Ever since I began studying privacy technologies and policies, I wondered why the United States didn’t simply create a new constitutional amendment to clarify the privacy rights Americans definitively have. If you’re not a lawyer, then a new constitutional amendment seems reasonable. After all, isn’t sorting out the penumbras of privacy exactly the point of having an amendment process? Wouldn’t a single, clear statement of privacy rights be better than relying on the First, Third, Fourth, Fifth, and Ninth Amendments as in Griswold v. Connecticut? Yes, passing an amendment to the constitution is difficult. It’s meant to be. But six have been passed since 1950. It’s not as though it’s been hundreds of years since we last did this.
A somewhat new theory in privacy law regarding the Third Amendment may highlight why a new amendment is not necessarily a great approach. The Third Amendment 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.
Yep, that’s the whole thing.
The theory, proposed by Mike Gatto, goes like this:
Let’s examine whether a case may be made. The National Security Agency is part of the Department of Defense and therefore of our nation’s military. By law, the NSA director must be a commissioned military officer, and per its mission statement, the NSA gathers information for military purposes. That’s strong evidence that NSA personnel would qualify as soldiers under the 3rd Amendment.
And why did the framers prohibit the government lodging soldiers in private homes? Besides a general distaste for standing armies, quartering was costly for homeowners; it was also an annoyance that completely extinguished a family’s sense of privacy and made them feel violated. Sound familiar?
Personally, I don’t think this will fly. The part of the Third Amendment that reads “but in a manner to be prescribed by law” is seriously problematic. One of the problems, from a strong pro-privacy standpoint, with the NSA program is that much of it was arguably legal. The data collection was more pervasive than most people thought, but I don’t think that arguing it was strictly “illegal” is an obvious winning argument.
However, there is another reason why we should be skeptical of this argument: there’s basically no case law for the Third Amendment. Here’s how Ars Technica describes this problem:
“The Third Amendment is always a ‘fun’ avenue for thought experiments,” said Paul Ohm, a law professor at Georgetown University. “But because it hasn’t been litigated in a long time, there really aren’t any experts per se about it.”
Neil Richards, a law professor at Washington University in St. Louis, told Ars that while he appreciated Gatto’s creativity, he doesn’t think this will be a particularly fruitful avenue.
“But the Third Amendment doesn’t have a rich legal history beyond the quartering of redcoats, and the Supreme Court has never applied it directly,” he e-mailed Ars. “In addition, the constitutional right to privacy in Griswold is anathema to many judicial conservatives, even those who might have been sympathetic to legislative efforts to curtail NSA spying.”
This sort of thing would also be true for any newly passed amendment. Obviously, some of the circumstances would be different, and I would imagine than a new privacy amendment wouldn’t get passed without extensive debate on how it would affect current case law. That’s sort of the point of the amendment process, but I don’t think that problem simply disappears once the amendment is passed. The precise wording of a privacy amendment would be extremely contentious, and its unlikely that anything would be passed that didn’t include some wording to allow for exceptions in extreme circumstances, like national security. If we had a new privacy amendment tomorrow, it too would suffer from a lack of case law.
Having said that, I’m still interested in the idea of a constitutional amendment for privacy. Even if it would be totally impractical, thinking about how the amendment would read and the process for getting it passed is a valuable thought experiment.