the digital rights amendment
The defenders of the NSA’s mass surveillance raise a point worth discussing – much of what is being done is legal. They point out that the NSA programs were authorized by Congress, reviewed by Courts, and run by the executive. They also read the Fourth amendment in a very narrow way. Personally, when I read that the people will be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” I’m pretty sure that means electronic communication. It would be bizarre if this right only applied to technologies present in 1789. “Papers and effects” seems to imply a lot of stuff, but the Courts and the executive seem to disagree.
This suggests to me that may we need to make mass surveillance explicitly illegal. How? The Digital Rights Amendment:
The right of the people to be secure in their transactions made through electronic media and other forms of communication, and in the data generated by such transactions, 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. The people will retain the right to review such warrants and challenge them in the courts.
In other words, you need a warrant to collect our data or even our “metadata.” And we get to see the warrant and we can take you to court. If you think I’m a criminal, you’ll have to explain it in court.