May 13, 2017 – With the advent of the Internet of Things (IoT), where one can ask questions of their Siri, Alexa or other concierge device–devices that are always waiting…”listening” waiting to answer you…do you ever wonder if what you ask your device–stays with your device? If so, the next question should be, Who is listening? By recent surge in technological sophistication in surveillance devices, this question poses a very real concern for those concerned about their privacy.
We have recently learned that cameras in our computers, TV’s and smart-devices can be hacked and use to spy on those who own and use them. But people say, it would be “unconstitutional” to monitor them without a warrant. But this analysis is flawed, because if the “uninvited intruder” or hacker is not a governmental actor–constitutional protections do not apply. Specifically, constitutional protections found in the Bill or Rights only protect individuals against government or government sponsored intrusion into one’s “home” or “zone of privacy.” It is the Fourth Amendment to the Constitution which protects us against unwanted intrusion into our “houses, papers, and effects”–protecting “against unreasonable searches and seizures” by state, federal or local government and those acting on its behalf. However, “nongovernmental” actors could be subject to civil liability statutes, including invasion of privacy or intrusion upon seclusion–or perhaps even criminal trespass, stalking or theft–none of which would appear to trigger constitutional protections. But what if the government, or a government-sponsored actor is spying on you in your home? What protections do you have?
As most American’s correctly believe, the Fourth Amendment to the US Constitution protects individuals from unwanted intrusion, unwanted surveillance–that is actions encroaching upon the privacy rights of law-abiding citizens, as well as those who may not be as law abiding–unless accompanied by a warrant. Yet, many Americans may still be unaware that the right of privacy is eroding almost as fast as our climate. That is, most individuals still believe that private conversations that take place within the confines of their home are private–and will remain so, at least for the foreseeable future. Some even believe they discuss nothing of interest that anyone–especially the government would want to hear. Yet, this idealism is radically naive–especially now that internet derived information can be easily obtained and used to profit marketeers who wish to tailor their advertisements to their ultimate “target” audience–you and every other consumer.
Thanks to the recent erosion of Internet Privacy Protections i.e., “rollback of regulations” by the Trump administration’s newly installed FCC Chairman, Ajit Pai–your internet browsing information can now not only be captured by your Internet Service Providers (ISP)– but bought and sold without your consent–and then sold again!
Devices that run on your ISP’s include all “smart devices” including your cell phone, TV, laptop even household appliances and security devices–anything that uses a listening device as an interface between it and its human owner. Because of the Trump administration’s war on personal privacy–with its goal to exploit information for business profit–these broadband providers can now exploit their customers from both ends–charging steep prices for internet service–while exploiting its customers’ use by selling it as personalized market data.
Taking this government sponsored “exploitation” a step further, most people have what the law terms an “expectation of privacy”–that what they say and do in the confines of their own home should remain private. In fact this philosophy of “privacy supremacy” been deeply entrenched in American jurisprudence since our nation’s founding–yet, these protections may have a new ally beyond the Fourth Amendment.
The Third Amendment–an Old Protection Made New?
The Third Amendment to our US Constitution is an oft forgotten amendment, often seen as an artifice of the Revolutionary War, when muskets not guns were the weapon of choice. Stating:
“No 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.”
Yet, up until recently, this obscure and oft forgotten amendment–part of the Bill of Rights–garnered little interest by academics since its ratification in 1791– eight years after the end of the Revolutionary War in 1783. It’s purpose, was to protect citizens from oppression by government, and protect the sanctity of the home.
In fact, this little known amendment made its first debut in jurisprudence and honorable mention along with several other amendments in the 1965 US Supreme Court case of Griswold v Connecticut. Surprisingly, the Third Amendment gained 20th century notoriety where a Connecticut statute criminalized the dispensing and use of contraceptive devices even among married people in their home. At the Supreme Court, Griswold made famous the oft quoted “zone of privacy” to which the US Supreme Court in Griswold held:
“The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’” Griswold made clear that people have an ‘expectation of privacy’ is clearly established in the Bill of Rights and needs to be protected.
Since Griswold, the issue of the Third Amendment rose-up again in Engblom v Carey in 1983, in the United States Court of Appeals for the Second Circuit in a New York case. Engblom is significant, as it is the only court decision based on a direct challenge under the Third Amendment to the United States Constitution–as the US Supreme Court has never directly taken up the issue of a modern day Third Amendment Violation.
Facts of Engblom
Over three decades ago in the State of New York–in 1979, there was a state-wide strike by state workers–which included a strike by New York State correction officers. One such strike, took place at New York’s Mid-Orange Correctional Facility, where correction officers who were on strike, lived in on-campus tenement housing on the grounds of the correctional facility. Due to the correction officers’ participation in the strike, they were evicted from their employee housing–and “replaced” by National Guardsmen who “moved” into the striking correction officers tenements. Notably, this housing was owned by the state of New York.
Two of the displaced correctional officers, Marianne E. Engblom and Charles E. Palmer, who were evicted from their “on campus” housing at the Mid-Orange Correctional Facility, filed suit in the United States District Court for the Southern District of New York, against the state of New York and its then governor, Hugh L. Carey. Both petitioners, Engblom and Palmer asserted claims including: actions violating the Due Process Clause of the Fourteenth Amendment (asserting violations by state actors), and violation of the Third Amendment. Not surprisingly due to the court’s deference to public safety concerns regarding the impact of the strike, the US District Court found in favor of the State of NY and its governor, and dismissed the case. Petitioners Engblom and Palmer “appealed” that decision to the Court of Appeals for the Second Circuit.
The 1982 decision by the Second Circuit Court of Appeals was written for the court by Judge Walter R. Mansfield. The decision affirmed the District Court’s dismissal of the Due Process claim; yet in a very interestingly turn, it addressed the petitioner (officer Engblom and Palmers’) Third Amendment claim.
Because of the sparsity of Third Amendment precedent in US jurisprudence, the decision in Engblom is of significant import, as it articulates three important findings that must be made:
(1) National Guardsmen are for purposes of analysis looked at by the Court as the equivalent to ‘soldiers’ for Third Amendment analysis;
(2) the Third Amendment applies to state as well as federal government authorities. This is significant as the court ruled that the Third Amendment could be applied against the states not just against the federal government & those acting on its behalf; and
(3) the Third Amendment protections extend beyond homes of those with full ownership rights to include anyone who, residing in their residence, who has a legal expectation of privacy and a legal right to exclude others from entry into the premises.
Most importantly, the majority of justices held that the correctional officers’ occupancy in the rooms was covered under the legal rules of “tenancy” and was therefore protected under the Third Amendment.
The case was then remanded, sent back to the Federal Court for the District of New York, where it was once again decided in the State and Governor’s favor–but not on Third Amendment grounds. It was instead decided on the basis of qualified immunity. That is where state actors including the “Governor” in Engblom are “immune” from liability if they believed they were acting legally under color of law. Had they been found to “knowingly committing an illegal act” or perhaps “grossly negligent in discerning the law” they would have been subject to liability. But because there was no proof of such conduct–the standard of culpable knowledge and liability on the part of the State and the Governor had not been met.
Despite the Federal District Court’s holding that the state and the governor were not liable for wrongdoing due to their ‘lack of ‘knowingly acting illegally’ or even “gross negligence” and the protection that standard affords by virtue of ‘qualified immunity’–Engblom is the only case where actual litigation of the Third Amendment has taken place–and where state actors have been defined as coming under the auspices of the Third Amendment.
Yet, despite any Third Amendment precedential ruling by the US Supreme Court, suffice it to say, the Third Amendment application in this case has the ‘potential’ to be far reaching. And, future cases that involve internet technology and the zone of privacy against intrusion in one’s home by state/federal actors may be litigated. To date however, this issue remains an open one that may one day soon be litigated at the nation’s highest court.
Technology & the Third Amendment Intrusions into One’s Home
While the Third Amendment has often been viewed as an 18th century anachronism, it may one day resurface in the 21st century in a situation where either technology has encroached upon civil liberties by virtual surveillance by law enforcement in the “privacy” of one’s home or where national disaster dictates government intervention. However, absent the consent of the homeowner–or tenant–or a declaration of war by Congress, such conduct is prohibited by the Third Amendment–but only if the owner or tenant has “tangible proof”, or “notice” of the invasion or intrusion. If those surveilled never know their privacy has been compromised–no claim will be made. If they do find out at a later time–a panoply of claims for a warrantless intrusion and breach of privacy “Third Amendment” claims can be made–but only once the intrusion has invariably, inevitably and irreparably already taken place.
- Engblom v. Carey, actual decision
- Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993)