Observing Constitution Day with "The Supreme Court and Privacy: The Fourth Amendment in the Digital Age"

Sep 17, 2014 · 3 minute read · Comments
ConstitutionCarnegie Mellon UniversityPittsburghMary Jo MillerNSA

I have a habit of observing Constitution Day every year by attending a presentation at CMU and thinking about issues relating to the Constitution.

Last year (2013), I was too disheartened to observe Constitution Day but wrote a little bit about why.

This year, I returned because the topic for discussion sounded interesting: Mary Jo Miller gave a talk “The Supreme Court and Privacy: The Fourth Amendment in the Digital Age” in the Posner Center. (Miller is a Staff Attorney for the Pennsylvania State Education Association and an adjunct professor in Carnegie Mellon’s Social and Decision Sciences Department.)

The fourth amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Mary Jo Miller gave an entertaining and instructive talk in which she discussed various rulings by the Supreme Court involving interpretations of the fourth amendment in various circumstances.

First, she reminded us that the fourth amendment came about because of the colonialists’ bad experiences with England when arbitrary searches of people’s home happened.

Then she argued that although it is popularly held that there is a “conservative” (“originalist”) wing of the Supreme Court (typified currently by Scalia) and a “liberal” (“living Constitution”) wing (typified in the past by Stevens), on fourth amendment issues, they are not always split. In fact, she gave examples of where the Court was unanimous.

The primary concern by the Court has been to respect (in the absence of probable cause) the doctrine that “each man’s home is his castle”. Miller gave examples involving surveillance of a marijuana grower’s home through a heat detector, as well as examining the contents of a drug dealer’s cell phone, as being judged a violation of fourth amendment rights because of what can be considered one’s “home”: a cell phone is actually a computer containing much of one’s possession, so it is in fact one’s “home” and requires a proper warrant in order to search it!

That’s about the “exclusionary rule” and “fruits of the poison tree”:

What about the NSA?

After almost an hour, I had to leave, and therefore did not stay for questions and answers. I would have asked about what the current thinking is by the Court about NSA surveillance. When is information far enough removed that it is no longer considered one’s “home”?

Conclusion

I did enjoy this year’s Constitution Day observance at CMU. Mary Jo Miller gave an excellent talk discussing various Supreme Court rulings and different aspects of the fourth amendment.