"Privacy, Property, and Free Speech: Law and the Constitution in the 21st Century"
Updated: Jun 29, 2022
by Prof. Jeffery Rosen, The Great Courses
Professor Jeffery Rosen is an absolute authority on all facets of privacy and law. In this Great Courses series of lectures, Prof. Rosen touches on everything from the history of our expectations of privacy. Including:
History lesson on King George III and John Wilkes, April 1763: I certainly can't do his presentation any justice, but in this course Prof. Rosen describes how and anonymous pamphlet, called "North Briton Pamphlet #45" inflamed King George III so much that he warranted the arrest of 49 people; John Wilkes was one of these people. The 'authorities' came to Wilkes' house, searched and seized his property, and was charged with creating a seditious pamphlet.
The John Wilkes proceedings are what inspired 4th Amendment of the U.S. Constitution. Fortunately for humanity, the judge in this case found in favour of John Wilkes:
"...if the crown could use general warrants it would affect the person or property of every man in this kingdom."
It gets better...
The John Wilburn case in 1638 is what inspired the 5th Amendment in the United States. John Wilburn refused to take the Oath Ex Officio, he refused to accept the authority of the Church of England, and was investigated by the Star Chamber for heresy.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." - Amendment V, Constitution of United States of America 1789 (rev. 1992)
My favorite quote I learned from Prof. Rosen:
"Ways may someday be developed, by which the government, without removing papers from secret drawers, can be enabled to expose to a jury the most intimate occurrences of the home." - U.S. Supreme Court Justice Louis Brandeis; 1856 - 1941
"Constitutional Originalists" like Justice Clarence Thomas believes the U.S. Constitution should be interpreted in light of the original understanding of the framers and ratifiers of the Constitution... A "static" interpretation of the Constitution, according to the expectations of privacy during that time.
Other Justices like Louis Brandeis believes the Constitution should be interpreted so that it protects AT LEAST as much privacy in the 21st century as the framers intended in the 18th century may have taken for granted.
The Patriot Act
In 2002 President Bush authorized the NSA to circumvent the Foreign Intelligence Surveillance Act (FISA) in order to intercept (without a warrant or subpoena) the electronic communications of individuals in the United States who are "suspected of being affiliated with terrorist groups".
Before the passage of the Patriot Act, the U.S. government could search certain personal records, including hotel, airline, and car rental records IF they could provide evidence to suggest that the records were that of a suspected spy or terrorist.
"Sneak & Peek Warrants" of the Patriot Act, and "Gag Orders"
Section 215 of the Patriot Act expanded government reach to include all tangible information, including book store receipts and library rentals, with no disclosure to the suspect - STRICTLY FORBIDDING the library/bookstore/rental from notifying the individual that their personal records are being searched.
Other topics include:
1968 U.S. Congress passed a wiretapping law... very interesting!
1978 U.S. Congress passed the Foreign Intelligence Surveillance Act... hmmm... whats this leading too?
In Lecture 6, Prof. Rosen details a government program dubbed "Perfect Citizen"... its great!
Which of the following is the government allowed to do, according to Prof. Rosen? **image courtesy of https://www.thegreatcourses.com/professors/jeffrey-rosen
- Demand you hand over your intimate diary
- Subject you to a "brain wave" machine to determine lies
- Draw blood during a traffic stop to determine blood alcohol
- The government can do all of these things.