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The Satoshi Revolution: A Revolution of Rising Expectations.
Section 2: The Moral Imperative of Privacy
Chapter 6: Privacy is a Prerequisite of Human Rights
Privacy is the Virtue that Sparked the American Revolution, Chapter 6, Segment 2
A general dissolution of principles and manners will more surely overthrow the liberties of America than the whole force of the common enemy. While the people are virtuous they cannot be subdued; but when once they lose their virtue then will be ready to surrender their liberties to the first external or internal invader.
â Samuel Adams
Many people are under attack from an internal invader: their government. Fortunately, history reveals a powerful weapon against the invasion.
Privacy is the revolutionary virtue that caused American colonists to slam the door in the face of British officials, both literally and figuratively. The Third Amendment of the U.S. Constitution prohibits the then-widespread practice of quartering soldiers in private homes, even during peace time, without the consent of owners. The Amendment sounds antiquated to modern ears. But correction of this travestyâs violation of privacy and property was important enough for revolutionaries to rank third in the list of liberties declared by the Bill of Rights. It follows the First Amendment (freedom of speech and religion) and the Second Amendment (the right to bear arms.)
Why? Because the Third Amendment asserted the right of domestic privacy against government intrusion into the most personal of realms â the home. It is the only language in the Constitution that addresses the relationship of the individual to the military, in both war and peace, and it gives priority to the individual. As outmoded as the Amendment may seem, it takes no great leap to apply its underlying principle to the current wars conducted by militarized law enforcement against terrorism and on âtreasonousâ crimes, such as money laundering. The individual comes first.
The Fourth Amendment also champions privacy. It opens by defending â[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.â In terms of crypto-privacy, the important word is âpapers.â The reference can be easily extrapolated into the 21st century to cover emails and other computer data. Moreover, the disparate history of how the law has treated âpapersâ and âeffectsâ reiterates the message of the Third Amendment. When it comes to âpapers,â individual privacy prevails. That is, it has until recently.
The Fifth Amendment also asserts the right to privacy by delineating the right of an individual not to bear âwitness against himselfâ in criminal cases.
Fifty-six colonists signed the Declaration of Independence. They knew it was an act of treason, which was punishable by death. If the revolution failed, they would lose their lives, their fortunes, and endanger their families. Even when it succeeded, some paid a terrible price. âFive signers were captured by the British and brutally tortured as traitors. Nine fought in the War for Independence and died from wounds or from hardships they suffered. Two lost their sons in the Continental Army. Another two had sons captured. At least a dozen of the fifty-six had their homes pillaged and burned.â Thatâs how important the signatoriesânow called Founding Fathersâviewed the principles of the revolution, including the virtue of privacy.
Privacy was a revolutionary virtue worth dying for.
[Note: this discussion focuses on the U.S., but the principles expressed easily cross national borders and cultures. Also, I do not whitewash the many abuses of the American Revolution; I do not dispute that Loyalists were also colonists; I mean merely to highlight the pivotal role of privacy in the Revolutionâs dynamic.]
What a Difference a Word Makes
When government confiscates or surveils smart phones and computers, the purpose is to snatch private information from those devices. In 18th-century parlance, the government seizes your âpapers.â Compliant citizens obediently surrender the information on those devices; some even defend the intrusion on the grounds of âsecurity.â Such people have every right to do so; it is their personal information to share or not. But they have no right whatsoever to require anyone else to comply with invasive laws and bureaucrats; they are morally wrong to demonize those who choose not to share. Yet those who say ânoâ to the gang rape of their privacy are literally treated as criminals.
Happily, history exists. Its invaluable lesson: things were not always this way, and it does not have to be this way now.
The world is experiencing what has been called a âtechnological crisis in modern legal doctrine.â Namely, the old rules do not always fit the new situation. Physical-evidence rules do not cleanly apply to digital evidence, and inconsistent rulings by the courts on cryptocurrency further confuse the situation. No one definitively knows the legal status of your crypto-wallet or your private keys. A solution to the growing legal mess may lie in a word within the Constitution, upon which few people remark â âpapers.â
Listen to history.
Again, the Fourth Amendment states, âThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.â
Aspects of the Amendment are clear. The government assumes the burden of proof before it can legally violate an individualâs privacy and property, for example. One aspect is commonly overlooked, however. It is the deliberate distinction between âpapersâ and âeffects,â between personal information/expression and personal goods. The common law, upon which Western jurisprudence is based, has traditionally granted far greater protection to âpapers.â
Law professor Donald A. Dripps opens his pioneering 2013 essay, âDearest Propertyâ: Digital Evidence and the History of Private âPapersâ as Special Objects of Search and Seizure , with two  questions. âWhy does the Fourth Amendment distinctly refer to âpapersâ prior to âeffectsâ? Why should we care?â
Dripps asks because he wishes âto ground special Fourth Amendment rules for digital evidenceâ within statute law in order to protect âthe volume of innocent and intimate information that must be exposed [or demanded] before the criminal material is discovered.â Fortunately, a path forward can be found in the past. In the 1760s, the American colonies reflected âa great controversy over general warrants, libels, and seizure of papers that erupted in England.â The controversy resulted in a complex analysis of privacy.
Returning to the Revolutionary Role of âPapersâ in Americaâs Birth
In 1761, the lawyer James Otis Jr. represented several dozen colonial merchants before the Massachusetts Superior Court. The case challenged the Writs of Assistance used by customs officials. The hated Writs were indiscriminate search and seizure warrants that instructed all local law enforcement to assist customs officials in searching private property for contraband or smuggled goods. The warrants expired only upon the death of the issuing authority, and they were often transferrable.
Otis took the case pro bono. Before a packed crowd, he rose in the Massachussetts State Court House to denounce King George III, the British parliament, and the entire English nation for oppressing American colonists. An impressionable young man in the audience was galvanized by Otisâ five-hour oration and by its passionate message. According to future President John Adams, Otisâ courtroom performance sparked the American Revolution:
âOtis was a flame of Fire!âŠ.American Independance was then and there bornâŠ. Every man of [the]âŠcrowded Audience appeared to me to go away, as I did, ready to take up Arms against Writts of Assistants [sic]. Then and there was the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain. Then and there the child Independance [SIC] was born. In fifteen years, i.e. in 1776, he grew up  to manhood, declared himself free.â
But colonial politics did not focus upon âpapersââletters, diaries, business recordsâwhich were not taxable items under customs law. English politics did.
In the 1760s, warrants for âpapersâ began to issue in Britain against authors and publishers who were suspected of âlibelââthat is, sedition. Entick v. Carrington (1765) was, perhaps, the most influential legal case of the day. The presiding judge, Lord Camden, offered the famous dictim: âIf it is law, it will be found in our books. If it is not to be found there, it is not law.â The governmentâs ârightâ to seize papers was not in the statutes. Therefore, it was not law.
The bare facts of the case: John Entick was the publisher of a paper that vigorously opposed the Crown. In 1762, the Kingâs Chief Messenger, Nathan Carrington, and three other officers broke into Entickâs home. They stole hundreds of papers in a search for evidence of sedition. Entick sued. Entick won.
Subsequent analysis of the Entick case revealed four aspects of the governmentâs action to be legally obnoxious. The warrant was indiscriminate, both in terms of the premises to be searched and the papers to be seized; the seizure expropriated the papers and denied use of them to the plaintiff; the warrant was unregulated because there was no neutral oversight or avenue of appeal; the seizure was inquisitorial because it gave the government information about the private workings of Entickâs mind. The latter point had special weight. Serjeant Glynn, counsel for Entick, declared: â[N]o power can lawfully break into a manâs house and study to search for evidence against him; this would be worse than the Spanish inquisition; for ransacking a manâs secret drawers and boxes to come at evidence against him, is like racking his body to come at his secret thoughts.â
American colonists paid close attention to Entick and to similar lawsuits in Britian. Penning the Fourth Amendment was not far behind.
âPapersâ Versus âEffectsâ Plays Out in Law
Dripps explains, âAlthough the reception of English law in the newly independent American states was not automatic or uniform, a basic pattern emerged. The Americans adopted the English common law together with statutes in force at the time of Independence, unless the English rule conflicted with a natural right or a state constitutionâs declaration of rights.â In short, any judge who considered issuing a warrant for papers ran up against the previously quoted principle of Entickâs presiding judge; if it wasnât in the statute books, it didnât exist under law. Moreover, warrants on âpapersâ ran afoul of an increasing number of state constitutions.
Dripps continues, âAmerica inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War.â The Civil War cost money, and the excise tax became the federal governmentâs major source of funding; tax evasion ran rampant. A unique statute was passed. An opinion in the ensuing Boyd v. United States lawsuit stated, â[This] act of 1863 was the first act in this country, and we might say, either in this country or in England, so far as we have been able to ascertain, which authorized the search and seizure of a manâs private papers, or the compulsory production of them, for the purpose of using them in evidence against him in a criminal case, or in a proceeding to enforce the forfeiture of his property.â Seizure of âpapers,â or compelled discovery, was now embedded in statute law. Apparently, war was not the proper time to debate Constitutional protections.
The issue of âpapersâ versus âeffectsâ legally zigzagged since the end of the Civil War. Arguably, the most important zig came in 1886, when Boyd was decided by the United States Supreme Court. âThe story of the Boyd case,â Drips writes, âproperly begins with a statute authorizing customs officers to seize the books and papers of importers suspected of evading taxes.â
Fast forward to an incident at the Port of New York. Customs officials seized 35 cases of plate glass for non-payment of import tax. The government required E.A. Boyd & Sons to produce the relevant invoice in order to fortify its case against the company. Boyd did so under protest, saying the involuntary disclosure was a form of self-incrimination that was prohibited by the Constitution; it also constituted unreasonable search and seizure. In short, the violation of âpapersâ denied due process. When a lower court backed the government, the case went to the Supreme Court.
The Supreme Court ruled in Boydâs favor. It stated:
âThe principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the courtâŠ; they apply to all invasions on the part of the government and its employees of the sanctity of a manâs home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camdenâs  judgment.â
The Boyd ruling reinstated greater Constitutional protection to âpapersâ than to âeffects.â It also bears directly upon digital âpapersâ or information. The protection was never absolute, however, and it has been severely eroded in the last several decades. Dripps explains, â[D]uring the last quarter of the twentieth century, the Supreme Court began effectively to equate âpapersâ and âeffectsâ. Another line of modern cases established âbright-line rulesâ that gave the same constitutional treatment to all âeffectsâ.â In short, âpapersâ not only lost their special status under common and Constitutional law, they also became legally interchangeable with every other âeffects.â Nevertheless, the precedent of Boyd prevailed for almost a century, and it is not toothless now.
Conclusion
Digital information was born into a new age of inquisition, in which privacy is viewed as guilt. Dripps observes, âToday, federal agents may obtain warrants to seize and carry away entire troves of digitally stored private papers and peruse those files at remote locations, one by oneâŠ.[What] the common law condemned as a relic of the Star Chamber, and what no American legislature authorized for the first eighty years of Independence, has become standard law enforcement procedure.â Extracting private information used to require torture or other flexing of muscle. Today, the violation is so politically sanitized that it can be invisible and easy to ignore.
Donât.
It has not always been this way, and it does not have to be this way.
Government wants people to believe that privacy is the antechamber of crime, a refuge for miscreants, and a danger to the innocent. The opposite is true. Privacy is a virtue upon which due process, freedom, and personal lives are built. Privacy is at the core of what it means to be human, because the essence of privacy is the individual mind as it assesses and experiences life.
The surest protection of privacy is to do exactly what government fears. Assert it; celebrate it; understand its pivotal importance to freedom. Do not respond to the spine-chilling demand â âYour papers!â
[To be continued next week.]
Reprints of this article should credit bitcoin.com and include a link back to the original links to all previous chapters
Wendy McElroy has agreed to âlive-publishâ her new book The Satoshi Revolution exclusively with Bitcoin.com. Every Saturday youâll find another installment in a series of posts planned to conclude after about 18 months. Altogether theyâll make up her new book âThe Satoshi Revolutionâ. Read it here first.
The post Wendy McElroy: Privacy Is the Virtue That Sparked the American Revolution appeared first on Bitcoin News.
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