The 4th Amendment Doesn’t Become Null and Void Just Because You Have an Easier Time Violating It

The title is a comment from the Techdirt article quotes GC for the DNI, Robert Litt, who claims that since computers can automatically scan your email easily, the 4th amendment does not apply:

Reuters has an interesting piece looking at how many experts are concerned that mass surveillance efforts by the federal government are making a mockery of the 4th Amendment. The focus of the article is on the scan of all Yahoo email that was revealed back in October, but it certainly touches on other programs as well. The concern is easily summarized by Orin Kerr:

“A lot of it is unrecognizable from a Fourth Amendment perspective,” said Orin Kerr, a former federal prosecutor and Georgetown University Law School expert on surveillance. “It’s not where the traditional Fourth Amendment law is.”

But, have no fear, the General Counsel of the Office of the Director of National Intelligence, Robert Litt, says there’s a reason for that, and it’s all technology’s fault. We’ve covered Litt and his somewhat nutty views on the 4th Amendment and surveillance in the past, so the following isn’t new. But Litt’s main defense of basically all of the NSA’s various abuses and mocking of the 4th Amendment is “it’s technology’s fault.” He’s quoted twice in the article, and both times, it’s all about the tech. First up, an argument that the traditional 4th Amendment doesn’t apply, because technology:

“Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt.

Later he is mentioned as making a similar argument. 

ODNI’s Litt wrote in a February Yale Law Review article that the new approach was appropriate, in part because so much personal data is willingly shared by consumers with technology companies. Litt advocated for courts to evaluate “reasonableness” by looking at the entirety of the government’s activity, including the degree of transparency.

Indeed, we’ve pointed to Litt making similar arguments many times in the past and it all comes down to “Well, people share this stuff with Facebook/Google/Yahoo, etc.,” so what’s the big deal?

Litt’s argument is morally reprehensible and intellectually vacuous:  It is pure bullsh%$.

Choosing to use Google or Yahoo, with all of its attendant privacy compromises is a choice.

The NSA or the FBI spying on us is not a choice.  It is the government imposing itself into our private business.

The constitution is SUPPOSED to make the job of the state security apparatus more difficult.

Live with it, or take a job making pastry.

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