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Video transcript

I'm Walter Isaacson to the Aspen in suit i move with Jeff Rossen of the National Constitution Center looking at that document and let's go to one of the most interesting of all of the Bill of Rights Amendment for which says the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated tell me what that means and why did they put it in was that a big deal for them it sure was a big deal and there was one case in particular that motivated that language when the framers talked about the right of the people to be secure in their persons and houses they were thinking about the British rogue John Wilkes this is a parliamentarian who criticizes King George accuses his mother of having an affair with lord bute the Foreign Secretary King George is furious and he issues a so-called general warrant authorizing his henchmen to identify the author of this anonymous pamphlet what's a general warrant it's one that doesn't particularly specify the place to be searched or the thing to be seized so armed with this warrant the King's agents break into everyone's house riffle through their desk drawers they identify Wilkes as the author of the pamphlet he's indicted for seditious libel criticizing the king he objects he says this general warrant is invalid and the King's agents should be liable for trespassing in his house and in a remarkable opinion Lord kandan agrees and says that general warrants authorizing paper searches violate the common law rights of Englishmen this is such a big deal that the colonists name cities and kids from Camden New Jersey to John Wilkes Booth after this case and that's why when the framers are talking about security and our persons papers houses and effects it's Wilkes's person looks his house and papers that they had in mind so that really becomes the basis of our right to privacy in a way and it says it goes on to say no one shall issue but upon probable cause you need to have probable cause to go search somebody you absolutely do and it has to be particularly describing the place to be searched and the person or things to be seized that's the difference between a general warrant and a particularized warrant you can't just have fishing expeditions and rummage through lots of innocent and an effort to search for needles and haystacks you have to have probable cause and particularity this seems to be one of those amendments that's most affected by technology and advances that they can never have thought of let's start with the cellphone can't um what can the government search our cell phones great question and the Supreme Court just recently said no the government can't search our cell phones in the same way that it can search other closed containers so the question in that case was when the police arrest you ordinarily if they find something on your person like a cigarette package they can open it up and make sure there's nothing inside to protect the officers and to prevent the destruction of evidence but the Supreme Court in a 920 opinion said when it comes to a cell phone the police can't look in your cell phone without a warrant because our cell phones contain so much more than cigarette packages they contain our Diaries our geolocation already so ciated with the political rallies we've attended that essentially our lives are on our cell phones it would be the equivalent of a general warrant to authorize the police to look at everything nearly when they arrested you instead you really have to have problem so why do we have things like warrantless wiretaps well there's a dispute about whether wiretaps are permissible without a warrant generally wiretaps require a warrant Congress said that in the wiretap law but several administrations have claimed that when it comes to so-called meta data that is the telephone numbers we dial not the content of our telephone calls warrants are not required because we don't have an expectation of privacy in that metadata remarkably several judges have disagreed and in a stirring opinion judge richard leon once again invoking the writs of assistance and general warrants it's amazing how often this history comes up says that NSA surveillance is just like those writs of assistance to hoover up all of that innocent information in an effort to search for guilty information is just like the offenses that spark the American Revolution way back they made a distinction between your expectation of privacy what was on the outside of an envelope you sent through the mail versus what was in the sealed envelope you sent what was that distinction and does that apply to things like your phone records and your wiretap or cell phones or emails you made sense in an age of sealed letters the address on the outside reveals less than the love letter on the but does it make sense in an age when our geolocation already seen as envelope information since we voluntarily surrender them to the third parties that store our information in the digital cloud the truth is there's a part of the law now that says that when I surrender information to a third party for one purpose I abandon all expectation of privacy in it for other purposes Justice Sonia Sotomayor said in an age when all of our most personal effects are stored in the digital cloud that would mean we have no privacy and she has called on the supreme court to reconsider this so-called third party doctrine how did the original disputes over what was meant by this fourth amendment what were the original disputes like in the early 19th century well they would have to do you know after we passed the days of the general warrants the most important Fourth Amendment dispute had to do with subpoenas for business information and there was a case called Boyd versus United States decided in 1890s that justice Louis Brandeis said we'll live as long as civil liberty is remembered in America and in that case the government issues a subpoena for some plate-glass that a guy has because they suspect he's illegally importing so goods and the Supreme Court strikes down that subpoena they say you that this violates both the Fourth and Fifth Amendment's which run almost into each other the notion of privacy was so strong that subpoenas of private papers even if they might be relevant to prove a crime were seen as a violation of the Fourth Amendment we've come a long way from those days Boyd has essentially been overturned and nowadays subpoenas are not generally seem to be Fourth Amendment violations but it just shows you how much the framers and the people throughout the 19th century cared about the privacy of private papers yeah you talk about privacy and we talk so much about privacy rights but I've read all 10 of these amendments in the Bill of Rights and I don't see any right to privacy in it is it in the Fourth Amendment that they found the right to privacy well the right to privacy that was discovered in Roe versus Wade for example was an amalgam of several different amendments so there was a case called griswold versus connecticut in 1960s and Justice William Douglas said in this case that the Bill of Rights protects privacy in different places the First Amendment talks about a mental privacy the third amendment prevents soldiers from being courted in your house the Fourth Amendment protects the privacy of your house the Fifth Amendment protects cognitive Liberty and Douglas said all of these different amendments create penumbra's form by emanations which create a broader right to personal autonomy and that's the right that was expanded to recognize the right of reproductive choice and row of sexual intimacy in Lawrence and Texas in which several lower courts have invoked to find a right of marriage equality and that right is controversial because as you say the words right to privacy or autonomy do not appear in the Constitution and one less thing about the Fourth Amendment it seems to be one of those amendments like many others in which we don't have a big liberal conservative split but it's less ideological I Scalia can also agree with one the more liberal justices that what could be an unreasonable search and seizure like putting a GPS device in your car that's absolutely right that's left case involving the GPS device in the car was struck down 920 all nine justices agreed that the police may not without a warrant place a GPS device on the bottom of your car and survey your movements twenty-four seven for a month they disagreed on the reasoning Justice Scalia and the more conservative justices said the problem was physical trespass and the fact the device was a fixed on the car and the guys property interests were interfere with four justices led by Samuel Alito said that the problem was the amount of information that could be revealed by the GPS device but it's inspiring that in a polarized age justice is a very different orientations can converge around the beautiful text of the Fourth Amendment and protect our right against unreasonable searches and seizures thank you very much deafening thank you