Tag Archives: bill of rights

Information Age Challenges to the Fourth Amendment

Clearly, I am intensely partial to the supremacy of the First Amendment so succinctly stated in the Bill of Rights.  Still, it is one of ten amendments to the Constitution that call for individual reflection and public discourse on the observance of Bill of Rights Day, December 15.

Thinking about the forthcoming observance of Bill of Rights Day on December 15 I have been rethinking the oft-forgotten and admittedly dated Fourth Amendment, a right long taken for granted, now the Cinderella of the technology era.

The Fourth Amendment to the Constitution is an 18th century statement, a vehement push-back to the tendency of the Brits to search and seize at will.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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.

Though Article I, Section 10 of the  Minnesota Constitution includes a very similar statement of rights, the Minnesota Supreme Court has at times allowed individuals greater protection of their person, home, papers or other effects.  The examples of search and seizure rulings in favor of the defendant include a 2003 case that ruled against “sniff” searches; in another case, the court ruled that DWI sobriety checks are unconstitutional under the Minnesota Constitution.

For 150+ years it was enough to recognize that the “search and seizure” plank of the Bill of Rights kept the Brits at bay.   The first technology case involving the Fourth Amendment came in the 1920’s when Justice Louis Brandeis wrote the dissenting opinion in Olmstead v United States.  Brandeis anticipated the Information Age by writing in that opinion that “it is now possible to invade the privacy of people at both ends of a telephone wire.”   In a prescient alert to the court Brandeis added, “Ways may someday be developed – without breaking into desk drawers – to extract papers from home and introduce them in court before a jury….The court should translate the Constitution and recognize that you don’t need a physical trespass to create an unreasonable search.”

Minnesotans today face a host of technology-based assaults on the Fourth Amendment – ranging from facial recognition technology to cell phone tracking, punctuated by last week’s exposure of Carrier IQ’s invasion of privacy that ignited the wrath of Senator Franken.

The crux of the search and seizure challenges is unwarranted (as in authorities acting without a warrant) stops and searches.   Unwarranted searches often occur in situations that arise in public places when the court uses the “reasonableness” test to assess constitutionality of an unwarranted public encounter. An interesting permutation occurred as recently as September 2011 when truckers prevailed in their suit against the Minnesota State Patrol’s “fatigue enforcement program.”

Digital devices and the Patriot Act top the list of premises that lead to unprecedented intrusions for which the law and the courts are ill-prepared.  Though the Constitutional issues of self-incrimination, privacy, freedom of expression and security are poised on the scales of justice, technology has outstripped the conditions reflected in the Bill of Rights

The challenge to enforce the rights guaranteed in the Constitution in the 21st Century is one good reason to take seriously the observance of Bill of Rights Day on December 15

Bill of Rights Day – Time to Celebrate the First Amendment as First Among Equals


When you flip the calendar to the overloaded December calendar, don’t expect to find December 15, 2011, highlighted as Bill of Rights Day.  This worthy but under-stated national holiday was officially declared on December 15, 1941 by President Franklin Delano Roosevelt.  In remarks prepared in advance of that declaration Roosevelt promised that Americans “will not, under any threat…surrender the guarantee of liberty our forefathers framed for us in our Bill of Rights.”   Because Roosevelt wrote these words just days before the attack on Pearl Harbor the declaration received scant attention then or since.


Seventy years later, with politicians thumping on the Constitution to justify their positions on just about everything, the Bill of Rights enjoys unprecedented immediacy – and deserves public scrutiny and a bit of historical reflection.


Reflection on the roots recalls what led up to the Bill of Rights and its relationship to the Constitution.  It is good to re-visit the conflict between the Federalists who were satisfied with the Constitution per se and the Anti-Federalists who saw the need to counter – or hold at bay – too much federal influence.


James Madison, in particular, concluded that the addition of a bill of rights was in the new nation’s best interest. In 1789, he began convincing his fellow members of Congress to support a bill of rights that would highlight some of America’s most important freedoms without undermining the recently ratified Constitution.


The documentary record of the first ten amendments is a fascinating story in its own right.  After a summer-long debate, the House sent a list of seventeen amendments to the Senate. The Senate approved twelve amendments, which Congress sent to the states for ratification in the fall. After Virginia cast the deciding vote on December 15, 1791, ten of the twelve amendments became the Bill of Rights we celebrate 220 years later.


Madison is generally credited with having had a heavy hand in crafting the elegant simplicity of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances


At the same time, Madison provides his own corollary to that bedrock amendment when he reminds his contemporaries and their descendents that “popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both.  Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”


Though the birth of the Bill of Rights long preceded that of the state, Minnesotans have played a significant role in shaping the Bill of Rights.  Legal ramifications of RNC protesters which rested almost entirely on the Bill of Rights still rankle some. At this moment Occupy MN protesters are depending on their First Amendment rights to continue their protests and to face whatever consequences may ensue.


Bill of Rights Day 2011 calls for reflection on the history of Minnesota and the Bill of Rights.  Twenty-five years ago, in anticipation of the 200th anniversary of passage of the Bill of Rights, Marshall H. Tanick published a significant article on just that topic in Minnesota History.   Tanick reviews the legendary Near v Minnesota case, then digs deep into Minnesotans’ contributions to the evolution of the Bill of Rights.


A prevailing theme in the court cases covered by Tanick is the reality that, for Minnesotans, the First Amendment is first among equals, the right most challenged and most cited as a defense.  That fact prevails as challenges to freedom of speech and the press, open government, media ownership, privacy, social media and a host of related issues rise to the top of the public agenda.


Thursday, December 15, deserves a reminder on every Minnesotan’s personal calendar to take time to consider the inalienable, if implicit, rights guaranteed by the Bill of Rights so often cited, so little understood, and so under-feted on national Bill of Rights Day.





Access-More in the Breach than in the Observance

It is no surprise that virtually all of the talk to and about newly-elected officials focuses on the economy and jobs, jobs, jobs.  One undertone that is too often ignored is the ever-so-subtle issue of the public’s right to information by and about the government.  Two disparate situations bring the latest issue to the surface.  One is the approach to the electoral process evident in the openness of the recent vote count and in plans underway for a potential recount.  The Secretary of State, the election judges, the legacy and alternative press are all at the table, exposing the process and the results.  On the other hand, the doors have remained slammed on the press and public seeking information about the selection of a President for the People’s University.  It’s time to aim the spotlight at an issue too often relegated to the closet.

One basic reality is that open government enjoys a special place in history as a nonpartisan issue, articulated by the founding fathers (who disagreed about just about everything) as a fundamental tenets of the democracy.  Similarly, the State of Minnesota has a distinguished and nonpartisan history of nonpartisan support for open government and informed popular.  In spite of this proud heritage open government is currently more honored in the breach than in the observance.

To a great extent it’s change rather than malicious intent that poses the threat.

  • Because the President has positioned his administration as a vocal proponent of open access, the inclination on the part of the other party may be to turn a deaf ear.  In fact,
  • The first change is in the newness as much as the politics of newly-elected decision-makers.  Access to information is an extraordinarily complex political arena in which experience, institutional memory and practice balancing forces are not infused but shaped by time on task.  Elected officials, incoming administrators, fledgling staffers and others who forge the information chain are often new to the game, newer still to the nuances of public policy relating to information.  In the current information environment mastery of the tools far outstrips attention to policy implications of technology.
  • Second, the information chain itself is in flux bordering chaos.  The inexorable march of information and ideas from decision-maker to constituent, agency to consumer, candidate to the public is cast aside as information – and misinformation – pulsates through the “pipes”, favoring those who own and understand the tools, disenfranchising those for whom time, geography, skill, finances and other incidentals present insurmountable barriers.  Agencies live is solitary splendor while the floodgates open to horizontal flows that ignore and supercede traditional organizational structures.
  • Third, the decline of investigative journalism has had a devastating effect on an informed public.  The  journalists, print and electronic, who bore a heavy responsibility/  They served the public good by ferreting out the truth, researching the record, separating fact from fiction, poking and probing, digesting and deliberating  – then producing information that makes sense to the reader, listener or viewer .   As their ranks  twindle there is a scramble to fill the void and a desperate search for a viable replacement model able to enhance public understanding rather than drivel.
  • Fourth, though ignorance of the law may be no excuse, it nonetheless persists.  Those who need to know often do not know their rights.  Public and nonprofit agencies face critical challenges that cry out for immediate resource allocation.
  • Finally, though current laws need constant review and tweaking, the base is firm;  transparency is recognized as a basic right.  As technology presents both possibilities and pitfalls existing laws deserve review and revision.  More importantly, implementation of laws and policies requires specific attention to oversight by responsible agencies at every level.  Again, it’s one of those implicit tasks that is so basic it can be neglected in deference to issues that are more dire, more doable or more politically persuasive.

Though undeniable and non-controversial, the basics are implicit and thus overlooked:


ü      That right is stated with clarity in legislation and regulation.

ü      Responsibility for oversight is sometimes unclear, more often buried in or blurred the bureaucracy

ü      Organizations and agencies that provide services to the public have an urgent responsibility to affirm that right and to provide the tools, skills and attitudes essential to an informed citizenry.  I

ü      The priority is to affirm and internalize the fact that an understanding of access must join the roster of essentials for elected officials, bureaucracies, nonprofits, schools, communities and families.

ü      Information, alone among public goods, does not diminish but expands with use.

ü      Sound information policy, combined with attention to implementation of that policy, is not a cost but a long-term investment.

It is at our individual and political peril that we ignore the basics.







Open government enjoys a special place in history as a nonpartisan issue, articulated by the founding fathers as one of the fundamental tenets of the democracy.  In spite of this proud heritage open government is currently more honored in the breach than in the observance.  To a great extent it’s change rather than malicious intent that poses the threat.