How the Founders’ Fight for Privacy is More Relevant Than Ever in the Digital Age

It’s been over 200 years since George Washington, James Madison, and 36 others signed the U.S. Constitution. While the modern era may seem worlds apart from early America, the threats to individual freedom posed by the British Empire eerily parallel those we encounter today from U.S. federal and state governments. Particularly, the use of surveillance as a method of law enforcement or as a weapon against political dissidents mirrors the abuses that once fueled the American Revolution.

The writs of assistance, or general warrants, permitted British authorities to search any colonial American’s home for “smuggled goods” without specifying either the house or the goods. These writs were a sweeping violation of privacy, and James Otis, a famous Boston lawyer, and fierce critic, described them as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law.” Otis argued that “a man’s house is his castle,” emphasizing that the government had no right to invade the private sanctity of one’s home without proper cause. His opposition would later help inspire the founders to ratify the Fourth Amendment of the U.S. Constitution.

Today, it could be argued that our phones and cars are extensions of that castle. The Fourth Amendment guarantees us the right to be secure in our “persons, houses, papers, and effects.” While the first three terms are clear, “effects” often gets overlooked, despite arguably holding the most significance in the 21st century. In essence, it refers to one’s possessions and personal property, which today includes digital devices, vehicles, and online data.

Yet despite these protections, law enforcement continues to find ways to skirt around the Fourth Amendment. For instance, much like British Authorities seizing colonial ships to search for smuggled goods, law enforcement use the automobile exception to warrantlessly search a person’s vehicle for contraband. Furthermore, with the proliferation of self-driving cars equipped with numerous cameras, police are going as far as towing these data-mobiles just to obtain the video stored onboard because they might have captured footage of a crime.

Another striking parallel can be found in the outsourcing of surveillance to third parties in order to govern from afar. Consider police use of databases belonging to commercial service providers, which is strikingly similar to the British Empire’s use of loyalist informants to monitor colonial activities and public opinion. Although not as advanced or data-rich as a computer network, these colonial spies still gathered valuable intelligence on revolutionaries, providing the British with the knowledge needed to suppress rebellion.

While undercover informants are still widely used by agencies like the FBI, it’s far more common for the U.S. government to rely on information collected by tech companies and other service providers today. These companies amass enormous troves of data on individuals, from geolocation to private communications and purchase history, which the government can access with minimal oversight thanks to the Third-Party Doctrine and the Data Broker Loophole. This form of surveillance may be digital, but its impact on personal privacy is no less invasive than the British loyalist networks that once helped the Empire rule from across the Atlantic.

Today’s threats to privacy and civil liberties are not new. In many ways, they are modern iterations of the same governmental overreach that the Founding Fathers fought to prevent: general warrants are now masked as geofence warrants; loyalist informants have been replaced with service providers collecting sensitive data on anyone with a digital footprint; and our transportation is still searched by government agents for items of interest. 

If we are to preserve the freedoms enshrined in the Constitution, we must recognize that the same battles fought over 200 years ago are still being waged, just in the form of digital surveillance and technological control.

In the end, the Fourth Amendment remains as relevant as ever, but we must ensure its protections evolve to keep pace with the technology that has become an integral part of our everyday lives. Just as Otis declared that “a man’s house is his castle,” we must now declare that our phones, cars, and data are part of that same castle, deserving the same protections from government intrusion.