A third amendment argument against the NSA

Stories about the NSA spying on US citizens are already legendary and show no signs of stopping anytime soon. Such intrusions raise questions on constitutional grounds regularly, but now there is a new twist to it. What if the government is putting spyware on your laptop to monitor your computer activities? It’s not a new concern, and you can even obtain a software package to try to detect such malware. With that in mind, it’s time to invoke the Bill of Rights, but perhaps not in the way you might think. Glenn Reynolds (a.k.a. Instapundit) summons up the image of such nosy software programs acting as government soldiers being quartered in your home. Is this a Third Amendment issue?

[T]he U.S. Court of Appeals for the Second Circuit held in Engblom v. Carey that the Third Amendment protects a “fundamental right to privacy” in the home. Since then, courts haven’t done much to flesh these holdings out, but I wonder if they should. In the 18th century, when the Third Amendment was drafted, “troop quartering” meant literally having troops move into your house to live at your expense and sleep in your beds. It destroyed any semblance of domestic privacy, opening up conversations, affection, even spats to the observation and participation of outsiders. It converted a home into an arena.

Today we don’t have that, but we have numerous intrusions that didn’t exist in James Madison’s day: Government spying on phones, computers, and video — is spyware on your computer like having a tiny soldier quartered on your hard drive? — intrusive regulations on child-rearing and education, the threat of dangerous “no-knock” raids by soldierly SWAT teams that break down doors first and ask questions later.

Insty is a Constitutional law professor, so I’m not going to challenge this theory. While rather odd sounding at first glance, I suppose I can see how an electronic spy in your home is similar to having government troops squatting there against your will and hearing all the intimate details of your life. But while having soldiers at your dinner table would absolutely be intimidating and could readily suppress speech inside your home, it at least has the redeeming feature of involving a full sized human being who you can see and have a decent chance of knowing when they might be listening in. We have few such clues regarding spyware.

The Third Amendment prohibits soldiers from being quartered in any house, without the consent of the Owner. It’s a fairly short amendment and does the job nicely of saying what you are protected from. What it fails to do, however, is spell out exactly why the government can’t do that. (I’m not saying that’s a shortcoming of the amendment, mind you. Brevity is the soul of wit, and sometimes a flat declaration is the best course.) In a case such as the question that Glenn raises, that lack of specifics as to the potential harm the soldiers might do leaves a lot of room for interpretation. It would seem that the obvious answer is that the government can’t take your food and other resources to supply the Army without your permission. But the loss of privacy is, I suppose, a valid rider to attach.

Still, I’ve generally thought for some time now that these federal intrusions would fall more easily under the Fourth Amendment. The right of citizens to be “secure in their persons, houses, papers, and effects” seems particularly apt here because it doesn’t require much of a stretch of the imagination to declare that our “papers” in the 21st century would include our emails and the various files on our computers. Those are the records we keep today and it looks like a fairly safe interpretation.

But hey… if somebody can make that conversion, I suppose spyware might be the modern equivalent of tiny government soldiers. Why not?