If this question had been asked by a fictional character in a spy thriller, it might intrigue you, but you wouldn’t imagine that it could be true in reality. If the Constitution means what it says, you wouldn’t even consider the plausibility of an affirmative answer. After all, the Fourth Amendment to the Constitution was written to prevent the government from violating on a whim or a hunch or a vendetta that uniquely American right: the right to be left alone.
Everyone wants, at some point in the day, at some places in the home, to be left alone. The colonists who fought the war of secession from Great Britain were no different. But that war and the wish to keep the government at bay had been heightened by the colonial experiences involved in the enforcement of the Stamp Act.
That law, which applied to the colonies and not to residents of Great Britain, required that government stamps be purchased and printed on all legal, financial and even political documents in the possession of every colonist. The enforcement of that law – which was done by British soldiers who entered private homes armed not only with guns but also with search warrants they had written for themselves, which Parliament authorized them to do – was so disturbing and resulted in such anti-British political animosity that Parliament eventually rescinded the act.
But the damage to British rule had been done, and it was irreparable. After the founders won the Revolution and wrote the Constitution and added the Bill of Rights, they rested in the assurance that only judges could issue search warrants “particularly describing the place to be searched and the persons or things to be seized,” and that judges could only do so if they found probable cause of criminal behavior in the place the government targeted.
The war on drugs has regrettably weakened the intended protections of the Fourth Amendment, and the Patriot Act – which permits federal agents to write their own search warrants – has dealt it a serious blow. That act, which has not yet been ruled upon by the Supreme Court, fortunately has not yet animated the Supreme Court’s privacy jurisprudence. Last year, the court invalidated the police use of warrantless heat-seeking devices aimed at the home, and it will probably soon invalidate the warrantless use of GPS devices secretly planted by cops in cars.
Regrettably, unless the government attempts to use the data it has illegally gathered about a person, the person probably will not be aware of the government’s spying on him, and thus will not be in a position to challenge the spying in a court. Relying on the Patriot Act, federal agents have written their own search warrants just like the British soldiers did. They have done this more than 250,000 times since 2001. But the government has rarely used any evidence from these warrants in a criminal prosecution for fear that the targeted person would learn of the government’s unconstitutional and nefarious behavior, and for fear that the act would be invalidated by federal courts.
Now, back to the CIA in your kitchen. When Congress created the CIA in 1947, it expressly prohibited the agency from spying on Americans in America. Nevertheless, it turns out that if your microwave, burglar alarm or dishwasher is of very recent vintage, and if it is connected to your personal computer, a CIA spy can tell when you are in the kitchen and when you are using that device. The person who revealed this last weekend also revealed that CIA software can learn your habits from all of this and then anticipate them.
Acting “diabolically” and hoping to “change fingerprints and eyeballs” in its “worldwide mission” to steal and keep secrets, the CIA can then gut the Fourth Amendment digitally, without ever physically entering anyone’s home. We already know that your BlackBerry or iPhone can tell a spy where you are and, when the battery is connected, what you are saying. But spies in the kitchen? Can this be true?
Who revealed all this last weekend? None other than Gen. David Petraeus himself, President Obama’s new director of the CIA. I wonder whether he knows about the Fourth Amendment and how the Supreme Court has interpreted it and that federal laws prohibit his spies from doing their work in America. I wonder whether he or the president even cares. Do you?