By Steven I. Friedland
“The world isn’t run by weapons anymore, or energy, or money. It’s run by little ones and zeroes, little bits of data. It’s all just electrons.”[1]
We live in an era of mass surveillance. Advertisers, corporations and the government engage in widespread data collection and analysis, using such avenues as cell phone location information, the Internet, camera observations, and drones. As technology and analytics advance, mass surveillance opportunities continue to grow.[2]
The growing surveillance society is not necessarily harmful[3] or unconstitutional. The United States must track people and gather data to defend against enemies and malevolent actors. Defenses range from stopping attempts to breach government computers and software programs,[4] to identifying and thwarting potential terroristic conduct and threats at an embryonic stage.
Yet, without lines drawn to limit mass data gathering, especially in secret, unchecked government snooping likely will continue to expand. John Kerry, the sitting Secretary of State, even recently acknowledged that the government has “sometimes reached too far” with its surveillance.[5] The stakes for drawing lines demarcating privacy rights and the government’s security efforts have never been higher or more uncertain.
This Article argues that the forgotten Third Amendment, long in desuetude, should be considered to harmonize and intersect with the Fourth Amendment to potentially limit at least some mass government surveillance. While the Fourth Amendment has been the sole source of search and seizure limitations, the Third Amendment should be added to the privacy calculus,[6] because it provides a clear allocation of power between military and civil authorities and creates a realm of privacy governed by civil law.
Consequently, in today’s digital world it would be improper to read the words of the Third Amendment literally, merely as surplusage. Instead, the Amendment’s check on government tyranny should be viewed as restricting cybersoldiers from focusing surveillance instrumentalities[7] on and around private residences or businesses in an intrusive way—or using proxies to do so—that would serve as the functional equivalent of military quartering in the civil community.
I. Mass Surveillance
Imagine an America with continual domestic drones, which collected camera and cell phone surveillance of every person in a particular residential subdivision, business headquarters, or city high-rise building. The surveillance would be mostly secret but “in public,” capturing people sitting on rocking chairs on their front porches, unloading bags of groceries from their cars, opening their wallets to pay bills, and anything visible through windows in private residences and businesses. People who go to sporting events or the supermarket would have their faces matched to an existing database. The metadata from Internet use, cell phone location data and other sources, including hyper-local observations, would be fed into computers for complex analysis and combined with other surveillance information.[8] This information, all gathered and utilized outside the private space protected by the physical walls and doors of houses, would present a fairly intimate picture of these individuals over time, creating in essence a virtual window to what is occurring within the house or building, as well as without.[9]
Such a day is not far off. Drones and robots are currently being employed domestically in the skies,[10] on land, and in the seas[11] for various purposes, although apparently not yet on a continual and widespread basis. Yet, expansion of their use seems inevitable.[12] While most unmanned aircraft systems fly high overhead, out of sight, as more information is released and people look more carefully, we will know they are there. The government also is developing the Biometric Optical Surveillance System (“BOSS”), which will have tremendous capabilities for identifying people from distances of up to 100 meters. This system was scheduled for testing at a public hockey game in the State of Washington in 2013.[13] To supplement the information acquired directly, the government obtains considerable amounts of information through the consent of third parties.[14]
While surveillance is not overly intrusive when deployed in public places, where being watched can be expected, it still can be dangerous.[15] Surveillance, when taken as a whole with information and data gathering, can form a mosaic of intrusion in a manner similar to that described by Justices Alito and Sotomayor in their concurrences in the GPS tracking device case United States v. Jones.[16] Pursuant to this “mosaic theory,” a privacy violation does not require a physical trespass. One commentator noted the following,
Today’s police have to follow hunches, cultivate informants, subpoena ATM camera footage. . . . Tomorrow’s police . . . might sit in an office or vehicle as their metal agents methodically search for interesting behavior to record and relay. Americans can visualize and experience this activity as a physical violation of their privacy.[17]
Significantly, surveillance also is an expression of power—an accumulation of data that can be used against persons, even creating that intimate picture of what occurs inside a house when the cybersleuth never actually sets foot in it. As another commentator has observed about possible power abuses, “We cannot have a system, or even the appearance of a system, where surveillance is secret, or where decisions are made about individuals by a Kafkaesque system of opaque and unreviewable decision makers.” [18]
II. The Third Amendment’s Place In Constitutional Orthodoxy
“[N]o 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.”[19]
A. Origins and Interpretations
The Third Amendment might have an obscure[20] and obsolete[21] place in constitutional law orthodoxy, yet it draws on a rich history. The bright-line Amendment[22] traces its origins to pre-revolutionary war England, where multiple abuses by the king in quartering soldiers, the Royal entourage and their horses in private residences led to laws prohibiting quartering in England.[23]These laws were enacted in part to avoid maintaining a standing army, especially during peacetime.[24] For example, in 1689,the British Parliament enacted the Mutiny Act, which outlawed the quartering of troops in private homes without the owner’s consent.[25] A standing army was thought to provide a slippery slope to tyranny, and it was the confluence of military with civil authority that was the real problem, not simply the taking of private resources by the King.
Continued quartering abuses in the colonies led to the adoption of the Third Amendment. Patrick Henry argued for the amendment because it offered rule by civil authority, not military force, [26] as did Samuel Adams, who objected to soldiers quartered “in the body of a city” and not just houses.[27]
Perhaps the amendment’s desuetude is attributable in part to the fact that it has only been the subject of Supreme Court cases in passing, such as in Griswold v. Connecticut,[28] and just one significant direct judicial interpretation, Engblom v. Carey,[29] a 1981 Second Circuit Court of Appeals case. In Engblom, the court was confronted with a claim by two correctional officers who claimed their Third Amendment rights were infringed by the State of New York when the state quartered national guardsmen in their dormitory-style residences during a prison strike by the guards in an upstate New York prison.[30] The guards were renting their rooms from the State.[31]
The court first applied the Third Amendment to the State of New York through the incorporation doctrine of the Fourteenth Amendment.[32] Significantly, the court viewed several of the key terms in the amendment expansively. The court considered the national guardsmen to be “soldiers” and held that the Third Amendment applied to the guardsmen as “tenants,” even if they did not own their quarters, despite the express language in the amendment.[33]
B. The Relationship Between the Third and Fourth Amendments
The Second Circuit in Engblom also used an analysis borrowed from the Fourth Amendment, setting forth a standard of a “legitimate expectation of privacy” to determine if Third Amendment rights were triggered.[34] It noted that the amendment’s objective was to protect the fundamental right to privacy in conjunction with the use and enjoyment of property rights.[35]
The Engblom analysis at least implicitly recognized the interlocking nature of the Third and Fourth Amendments and the primary role of the Fourth Amendment as the privacy standard bearer. As one noted commentator observed, “If the Fourth Amendment had never been enacted, the Third Amendment might have provided the raw material for generating something like an anti-search and seizure principle.”[36]
Constitutionally, courts have used the Fourth Amendment to protect against government snooping on others, but the Fourth Amendment has been strapped with textual limits, given its language protecting only against unreasonable, not all, searches and seizures, and interpretive limits authored by a reticent Supreme Court that has stuck by rules created in predigital cases.[37] Also, while the Fourth Amendment protects against United States government spying, it does not apply to such conduct by foreign governments, which can and do swap data with the United States,[38] or apparent swaps of data with thousands of technology, finance, and manufacturing companies.[39]
Preoccupation with the Fourth Amendment doctrine, combined with a Gresham’s Law style of constitutional application suggesting that general principles often end up marginalizing specific provisions, help explain the Third Amendment’s disuse. A contextual interpretation of this amendment in the digital era could offer a significant link in a system of digital checks and balances.
III. Interpretation
The Third Amendment’s relevancy to surveillance privacy depends on its interpretation,[40] both in terms of its themes and words. The amendment’s broad themes resonate in the world of “Big Data” and the Internet. The amendment provides a bright line allocation of power, with a clear distinction that limits the military and protects homes from intrusion without consent. As evidenced by Due Process, Equal Protection, and other constitutional doctrines such as the Eighth Amendment, the Court often takes into account evolving facts and cultural transformations over time. A more specific analysis of each component of the Amendment follows.
A. War and Peace
The wartime/peacetime distinction in the amendment provides a useful contrast about the expansiveness of government power at different times. When compared to the Fourth Amendment, the framers of the Third Amendment provided a clear line of what is reasonable in times of war or peace.
B. Soldiers
History is instructive. Early English case law reflects the concern over forced accommodations and board not only by soldiers, but also by the royal court and its entourage.[41] The prohibition extended to the soldiers’ instrumentalities, namely their horses.[42] In the late 1700s, soldiers honorably fought in uniform generally within full view of the enemy. Times have changed. InEngblom, national guardsmen were considered soldiers, even though they were defending a domestic prison. Today, the definition would certainly include cyber agents, military personnel who are paid to hack and disrupt another country’s software and hardware and to protect our own. Instead of horses, these cyber soldiers use codes or metal instrumentalities to invade others’ cyber spaces.[43] Using stealth and remote access to obtain and crunch data is the new face of warfare; these soldiers disrupt and disable various aspects of a country to keep it off balance and vulnerable. For example, deployment of the Stuxnet worm, placed on computers in Iran to disrupt its quest for nuclear weapons, is but one illustration of the new military.
C. Quartering
Quartering historically came to mean an “act of a government in billeting or assigning soldiers to private houses, without the consent of the owners of such houses, and requiring such owners to supply them with board or lodging or both.”[44] Billeting can mean a letter ordering the assignment or the assignment itself. This definition yields some insights. Significantly, it is a military intrusion into home life—civilian life—by soldiers, which is why early English analysis incorporated the forced provision of board and the tethering of horses as part of quartering. Thus, it is the intrusion and diminishment of civil authority and life that matter, even if it is through remote access rather than the physical presence of the soldiers. An unmanned drone is the equivalent of a piloted plane. Would military personnel stationed regularly at businesses, or operating cameras on the rooftops of private residences or businesses, or even on all public mailboxes generate intimidation or intrusion into daily life? Would the intrusions still be significant if the soldiers were outside of the houses and businesses, in the curtilages, peering inside or the equivalent? Especially if seen or heard, electronic surveillance devices could significantly interfere with civilian community life and intrude on civilian authority. As one commentator has noted, “[G]overnment or industry surveillance of the populace with drones would be visible and highly salient. People would feel observed, regardless of how or whether the information was actually used.”[45]
Quartering today also can involve proxies, where the U.S. government knows and promotes the equivalent of private or foreign quartering for its own gain. One illustration of proxy quartering might involve an agreement between countries to swap sensitive data on each other’s citizens, revealing the intricacies of civil life inside the cities and their residences or businesses.[46]
D. Any Houses
The term “any houses” on its face appears highly restrictive.[47] Yet, at least in Engblom, it also means tenancies. While tenancies refers to residences, today there are a proliferation of buildings housing businesses, which fall within the types of civil occupancies where sensitive and confidential civil life occurs. Invasions of these buildings without physical entry can occur regularly in the digital world, which is how the term should be judged and is in keeping with the intent of the framers.
While the term “any houses” could be more broadly construed to mean all private chattel or real property, including electronic devices,[48] this likely would expand the meaning of the amendment to become a version of the Fifth Amendment Takings Clause, not likely intended for the Third Amendment’s “houses” distinction, particularly when the Fourth Amendment protects not only houses, but also “persons, places, and effects.”
E. Without Consent
Although the amendment permits quartering in peacetime with consent, if quartering extends to businesses, the government-private business partnerships create questions about the voluntariness of the relationships. This is especially the case if the government inserts employees into the private business locations. This type of relationship might not generate adequate voluntary consent.[49]
Conclusion
The Third Amendment no longer will be the forgotten amendment if it is considered to interlock with the Fourth Amendment to provide a check on some domestic mass surveillance intruding on civil life, particularly within the home, business or curtilage of each. In the digital era, the dual purposes of the Amendment should be understood to potentially limit the reach of cyber soldiers and protect the enjoyment of a private tenancy without governmental incursion.
