21. What is The Fourth Amendment?

Did you know you actually have a government right to privacy? Our Founding Fathers understood how dangerous it can be when a government is allowed to search a person, or their property like their home. To protect Americans from this, and other common government threats, the Founding Fathers wrote the Bill of Rights, which includes 10 of the most sacred rights that protect individuals from a government carried away with power. The right to protect ourselves against unlawful searches and seizures is protected to us via the Fourth Amendment.

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Links:

• Fourth Amendment Text 
• Stingray 
• Protecting The 4th Amendment In the Digital Age

Terms:

• Metadata: a set of data that describes and gives information about other data.
• Warrant: a document issued by a legal or government official authorizing the police or some other body to make an arrest, search premises, or carry out some other action relating to the administration of justice.
• Writs of Assistance 

Here is the Transcript of our conversation:

Connor: Hey, Brittany.

Brittany: Hey, Connor.

Connor: So on a past episode, we talked about someone named Edward Snowden and what he did a little bit of civil disobedience, and he released this information. He wasn’t, the government didn’t want him to, but the public really appreciated it. And he was talking a little bit about privacy and how you know, the government is spying on people. And so let’s talk a little bit about, you had mentioned this, I think, toward the end of that episode, the Fourth Amendment. So maybe if you would start, help our listeners understand a little bit, maybe start with the Bill of Rights, and then what does the Fourth Amendment say or mean?

Brittany: Yep. So we’ve talked about, in previous episodes, a little bit about the Constitution, that’s the big document that kind of dictates everything we do and care about, or what everything that government cannot do, rather can do, Sorry, let me go back there. So the Constitution tells the government what they can do, Enumerated powers, we’ve talked about this a few times. Now the Bill of Rights is the coolest part, in my opinion, of the Constitution, because that’s everything they cannot do, no matter what you do, they can do it. So the Bill of Rights, that First Amendment free speech. Right. That’s telling us they cannot tell us what we can and can’t say. The Second Amendment and I’m not gonna go through all of them, I’ll just name a few, is the Right to Bear Arms another very important one, and the Fourth Amendment that guarantees our right to privacy from the government. So you might not think you have that right, but you actually are allowed to, whether or not you’re doing anything wrong or not, you are allowed to be private from the government. They don’t have the right to come into your house. And other governments don’t have that Right.

Connor: Now. Brittany, one thing I find so interesting, and I, we may have mentioned this on the episode where we talked about the First Amendment, but this Bill of Rights that you talk about, is kind of thou shall knot for the government, right? Yeah. Hey, government, you shouldn’t do this. You shouldn’t do that. There were a lot of founding fathers, people who helped craft the Constitution, who felt like we didn’t even need a bill of rights. They felt like, Well, look, as you’ve just pointed out, Brittany, look in the Constitution, we have enumerated powers. These are the only powers that we’re giving to the federal government. All the other powers will stay with the states or with the people. So why do we need to go through and have a list of things the government can’t do? Because here in the Constitution, we’ve only said that they can do a few things. But as history very clearly points out, the people who pushed for the Bill of Rights were, so smart to do so because the government has grown way beyond the enumerated powers and the courts haven’t really, you know, served as a very good check and balance. And so, Brittany, to me, it’s so scary to think what America would be like today if we didn’t have the Bill of Rights.

Brittany: Absolutely. And James Madison, who was in support of the Bill of Rights I’m, not gonna get the quote right, so I’m not gonna try, but he said something to the extent of, if we had a government filled with angels, then maybe we wouldn’t need one. Yeah. You know, but we don’t, as we talked about in another episode, we’re all human, even government officials, they don’t have some sort of superhuman power that makes them better than us. They’re flawed humans just like we are. And so it’s good to keep people, as Thomas Jefferson said, chained right by a constitution to make sure they’re not doing anything that they shouldn’t be doing. And that’s what the Bill of Rights does for the people that make sure that, we are secure. Now, you and I know that doesn’t always happen, right?

Connor: Right.

Brittany: Even though we have the Bill of Rights, as, we’re about to into right now in the Edward Snowden case, as we found out the government had been violating, that they weren’t sticking to our right to privacy. But the Fourth Amendment, which we’re gonna talk about today, that is, again, I don’t think any amendment is more important than the others. They’re all pretty important. But there’s something very sacred about the Fourth Amendment because I think it, just explains individualism, Right? It explains that we are our own people and we are free from being searched by the government.

Connor: Let’s start maybe Brittany with a little bit of backdrop for why the founding fathers wanted to put the Fourth Amendment in place, to begin with. And I think you teased this a little bit on that past episode as well. During the Revolutionary War, or even before the war started, King George and the British Red Coats, these soldiers were kind of occupying the colonies. They were there to kind of enforce the laws. And as tensions started to escalate, think of the Boston Tea Party. This is a very well-known story, right? Because the colonists were getting very upset about the taxes and the tariffs, which was the government, you know putting basically a special tax on certain goods. And, they were really getting upset, especially in Massachusetts and Boston. And so the Boston Tea Party happens, and these other rebellions happen. So if you’re King George, if you’re in charge of the British, you know, military and government, you’re not really happy with how these rebellious colonists are acting. Especially if you think that you’ve been helping them. You’ve been protecting them. There was the, you know, French and Indian War, the Seven Years War, and, you know, here comes Britain spending all of this money to protect their colonies on the other side of the world. Right? Very hard to transport all the supplies and the soldiers and, so forth. So here are these ungrateful colonists, you know, who were causing these problems. And so as the tensions started to escalate, as these quote-unquote patriots in America started to push against rule by this distant English country and government the red coats, the soldiers would do they, had these documents that they called Ritz of Assistance.

Brittany: Yep.

Connor: W R I T, Ritz of Assistance. And what it basically allowed them to do was to basically write on this document and say, Hey, Brittany lives here. Okay? I’m giving myself permission to go into Britney’s house and just search for it. They could do it themselves. They could do it whenever they wanted. They could do it for, you know, whatever reasons that they came up with.

Brittany: And they didn’t even have to say what they were looking for. Right. Cuz that’s a big reason. Right. That’ll come into play in a minute. They could just search your House.

Connor: Yes. And so these were what’s called general searches. In other words, as you just point out, we can search the entire house, we can search the entire straight full of houses. We can do whatever we want, invade people’s privacy, go through their homes, go into their homes and have access to these things. And so imagine here you are, you care deeply about property rights and individual liberty, and you’re starting to push back against this government. You probably hate the Ritz of assistance. Yeah. Because of how broad and open-ended they were. And so this was why when they thought about the Bill of Rights and started thinking through, Hey, what should we put in there? This was top of mind because the red coats, the soldiers had been just invading personal freedoms to, such a significant degree.

Brittany: It did. And I think it even got to the point where they could just stop you and it wasn’t even your house. Right. They could just stop you and say like, All right, we’re gonna search you to make sure you don’t have political pamphlets where big back then that was something, you know, where you could write your political views. And a lot of times it was anti-crown, right? It was an anti-red coat. And so this was almost, I’m trying to think of the right word. Contraband, I guess would be the word. Something that is not allowed. Right?

Connor: Right.

Brittany: So, this is exactly, that’s why the Fourth Amendment was written. And one thing we just mentioned is that this was a general search, right? So the Fourth Amendment made sure that if the government was going to search you, they had to have a reasonable, or they had to have probable cause, which means there has to be a reason. Right? They can’t just come to search you because they have a hunch. They can’t just say, you know, I don’t really like the way Connor looked at me today. I think he’s hiding something bad in his house, so we’re gonna go raid his house and go, check it out. That’s not what that does. In fact, a police officer would have to go to a judge, and get what’s called a warrant, where they not only list where they’re looking. So if they’re gonna look in your house, they can’t also look in your car.

Connor: Right

Brittany: They’ve gotta say that they’re going to look in your house, in your car, and they have to state exactly what they’re looking for. So there’s been a few court cases where somebody was caught doing something else, like something else the police didn’t suspect them of doing. But because they did not specifically list that thing or that reason in the warrant, they couldn’t use that in court. So these are very, I think it’s called procedural, right? That’s what, we call the Fourth Amendment. So it kind of lists things that you have to do in order to make sure people’s rights are, abided by.

Connor:

So let me read what the Fourth Amendment says. For any listeners who either have never read it or haven’t read it in a while, it’s pretty short. It says that the Fourth Amendment, it protects the right of the people to be secure or private. You might think of that word, secure in their persons, their houses, papers, and effects against unreasonable searches and seizures. And it says, this right shall not be violated. And no warrants, as you just pointed out, no warrants shall be issued except for probable cause. Based on probable causes supported by an oath or affirmation. In other words, the officer says, Hey, I have, you know, probable, cause to believe that, you know, Brit has something illegal in her home. Right? And, this is where when we talk about the general warrants, it says, and particularly describes the place to be searched and the persons or things to be seized. So you can see why they worded it this way when they had Yep. Experience with General Ritz of assistance, general searches, and unreasonable. These were unreasonable searches and seizures of their property. So here they’re saying that you can’t do these things and no warrant can be issued by a judge unless, and then probable cause. In other words, they have to show that, hey, if I go into Britney’s home, I’m probably gonna find what I’m looking for because her neighbor told me that it was there last time she visited, or, she, you know, was on this podcast with this Connor guy. And you know, she mentioned there that she has this

Brittany: Raw milk

Connor: This yeah. This raw milk is in her room. Right? So it’s probably gonna be there if we go get it. So that’s probable cause they have, they can’t just have a hunch. They can’t just guess. They have to give evidence to a judge that probably if they were to go in there, they would find it. They have to support it with an oath or affirmation. So they have to basically you know, put their integrity on the line. And then what’s so important, and especially Brittany, when we think about our conversation previously about Edward Snowden, when we think about these following words, that the searches can only be authorized when they particularly describe the place to be searched and the Yep. The persons or things. And you just talked about that, Right?

Brittany: That’s my favorite part. It’s so Specific,

Connor: Right? They can’t, you know, do the house and the second house, outback and underground and the bunker and out in the car and all these places. They can’t search a whole neighborhood, you know, Oh, we think this will be here. And so we just wanna search everyone’s homes. This really limits it. So maybe let me ask you this, Brittanythe fourth Amendment only says, you know, persons, houses, papers, and effects. So talk to me, especially since we talked about Edward Snowden Talk to me a little bit about why the Fourth Amendment has maybe struggled a little bit, or why there’s been some controversy when it comes to, now. Wait, we don’t use paper as much. All of our stuff is on our phones and our computers. What’s that struggle looking like?

Brittany: Yeah. And it gets even, so you’re right, we use technology now, but there’s something called metadata. And that gets even weirder because, so when the government can get our files, we talked about Edward Snowden and how they have this information, they don’t necessarily have exactly what I said to you, right? They don’t have me saying, Hey Connor, I’ve got some raw milk come over and, you know, come over and see it. Right? They’re not seeing that. But they saw that I texted you, or I called you at this time on this day, and that I continued to call you, know, this day and that day. So they have a little bit of information that is still enough, but that is still not okay. They shouldn’t have that information. But the government argued that they weren’t doing anything wrong and that they weren’t violating the Fourth Amendment because they didn’t have the actual details. Even though I believe Edward Snowden already kind of admitted to us that they could have gotten those details pretty easily because everything was on their servers in the big NSA what do we call it? I mean, it looks like a bunker to me. But the big building we talk about in the Edward Snowden episode. So that’s something that’s gotten a little tricky, right? And some courts have agreed with the government and some haven’t. So this is kind of a constant struggle in our modern world.

Connor: It is. And, it feels like the courts have a hard time keeping up. Cuz the founding fathers, tried wording these things in a way that was broad enough to cover things in the future, right? They couldn’t imagine cell phones and computers and emails. Oh. But you know, when it talks about being secure in your papers and effects that, you know, clearly suggests that if I have, think of it this way, if a law enforcement officer wants to come into my home, cuz they think that I have some medicine that I illegally obtain, so it’s illegal drugs, they would have to get a warrant. They have to say, Hey, here’s why we think Connor has it. Someone told us, or we have some evidence. And so it’s probably gonna be there. So we want to go into Connor’s house, into his, you know, medicine cabinet and get it so that we can then, you know, charge him with a crime. They would have to go to a judge. And as we’ve pointed out, they have to particularly explain where it’s gonna be and why it probably will be there. And then the judge signs off on the warrant. But what about all of these laws across the country where the people, when you go get medicine, your information about what medicine you take goes into a government database? So the government has a database of all the medications that Connor takes or that Britney takes, or our parents or grandparents, aunts, uncles, and everyone else. They have this big computer database, this list basically everyone’s private medical information. And there are officers, we’ve dealt with it in our state. And this is an issue across the country. There are law enforcement officers who will try to access that database, that list of your medications because they want to do an investigation. They wanna see, Oh, is Britney doing anything wrong or is Connor doing anything wrong? Is he getting too many, you know, drugs? Maybe he’s selling it to someone. Maybe he’s, you know, getting a renewal of his medication when he doesn’t need it. Well, oh my gosh, the government has access to our virtual medicine cabinet. Yeah. Right? And so shouldn’t terrify, shouldn’t they have to get a warrant as well? Just like they’d have to get a warrant to go into my home to see what’s inside my medicine cabinet. Why shouldn’t they also have to get a warrant to access the digital version, you know, of what is there? And so this shows you very real-world examples, right? Where the government, they’re trying there are devices called a stingray, right? Like, so let’s say, Brittany, that you’re being suspected of a crime, an officer can drive over to your home, they can park up to like a mile away. So you have no clue.

Brittany: Is that that far? Is it a mile?

Connor: Yeah. Yeah. Cause what it is, this stingray is like a cell phone tower. If you understand how cell phones work, our cell phones are always talking wirelessly to nearby towers and they’re saying, Hey, I’m over here. Send me some information, or here’s some information to send to, you know, Bob or Jane or whatever. And so our phones are just constantly talking to nearby towers. Think when you’re driving on the freeway, right? You, get further away from one tower that’s too far for your phone to reach, but now you’re, you know, near a new one that’s closer. So our phones are always doing this. Well, this Stingray is a device that the government can use and it basically is a pretend cell phone tower. And so all of our phones automatically start talking to this government device, the Stingray saying, Hey, here’s my information, and here’s this text I’m sending and here’s, you know, this data. And so all of a sudden the government can capture all of this information that people are privately trying to, right? And so like in our state, that’s one thing that we’ve done in our work is we went through and we said, No, you have to get a warrant for that. You can’t do that. And one of my favorite things, Brittany, about this is if, an officer wants to go into your home, just this before when they would, with a writ of assistance back with red coats, if they have got a warrant, they have to give you a copy of the warrant. They have to say, here’s the warrant signed by the judge. This gives us authority to come into your home and, you know, seizes your, whatever, your raw milk. But you would be presented with a copy of a warrant. Well, what if an officer has a stingray and he’s trying to get your information? You would have no clue.

Brittany: You’d have no idea.

Connor: And so what we put in our law is a provision of a part of the law that says if you go after let’s say, Brittany’s cell phone and you’re trying to capture her information, you have to tell her, you have to give her a notice just like you would if you’re trying to go into her home. Right? And so these are the exciting things that we work on at our organization here in Utah. And now we’re trying to get other states to do the same thing, but we’re trying to solve a problem, a very real problem where the Fourth Amendment, you know, says what it says, we went over it, but there’s all these new digital things, computers, emails, text, cell phones, everything else.

Brittany: And who knows what the future holds? Totally. We don’t even know what’s gonna happen next.

Connor: Absolutely. Right? And so the future is always innovating. The market is going fast. The government doesn’t always keep up. And so police and the government will use these new technologies, but the Fourth Amendment doesn’t protect us as well as we would like. However, Brittany, just like we said earlier, imagine a world where we didn’t even have the fourth Amendment and how scary that would be. That’s really scary

Brittany: Because they blatantly disobey it now anyway. Oh, right. What’s the point? So imagine if there was no law. Yes. So, that’s one thing, constant vigilance. I think that’s actually, I took that from Harry Potter from Madi Moody, but I love it because he’s right. Constant vigilance against the dark guards is what he would say. But I would say against dark forces, maybe in our government, stingray things that are trying to violate these rights that were created for a reason. And don’t let anyone ever tell you that this is outdated, that we don’t need this anymore. Right. Clearly, I think Edward Snowden proved this more than we ever could. We still very much need the Fourth Amendment.

Connor: That’s exactly right. Well, go to TuttleTwins dot podcast to find them think I said, tuttletwins dot podcast. That is tuttletwins.com/podcast. And you can find the show notes page for today. We’ll provide some resources and information about the Fourth Amendment. We can even link to the bill that I mentioned that we did here in Utah, in case you wanna talk to your legislators in your state about doing it. Make sure that you’re, you’re following this stuff. This is so important and it makes history come alive cuz it’s one thing for the founding fathers to have fought for our freedoms, right? And the Constitution, the Bill of Rights. But as you said, Brittany, it’s what’s that other quote? Eternal vigilance is the price of liberty. We have to, make sure that we’re watching and that we’re pushing back when people are trying to, you know, undermine the Fourth Amendment with our cell phones and our, emails and our texts, for example. So, very, good information. Super important to learn. Hey Brittany, thanks for chatting with me. Is a great conversation.

Brittany: Same. I’ll talk to you next time