The Bill of Rights was written for a reason. As the government attempts to violate the rights protected in it in new and different ways, it gives us more reasons to be thankful for its authors’ wisdom.
Last week, we saw another example of this as the Department of Justice (DOJ) tried to violate the Fourth Amendment while stepping on the Second Amendment by demanding that the manufacturer of a rifle scope give the department the names of everyone who downloaded an app connected with the product. Correctly, the manufacturer has refused to do so.
The story almost did not make it into the news: DOJ’s order was supposed to have been sealed, but Thomas Brewster, a cybersecurity reporter for Forbes, was able to view a copy before it was concealed. His story on the DOJ request shed some light on the heavy-handed tactics the government uses in secret to violate the people’s constitutionally protected civil rights. That the order was almost kept hidden from the public also raises the question of how often this has happened before and how many companies have given the feds what they’ve demanded.
The DOJ Is Violating the Bill of Rights
The company in question, American Technologies Network (ATN), manufactures scopes and has developed the Obsidian 4 app. The app allows users to connect the scopes to their phone to better calibrate them. It also allows them to record video and to livestream the view.
Nothing about this violates any federal or state law, and the product is popular. It had more than 10,000 downloads when the story broke last week, and according to the reviews on Google Play, many more people have since downloaded it in protest.
The government’s interest in the app comes because of its investigation into the suspected exporting of the scope to foreign countries. Under the Arms Export Control Act of 1976, the government requires licenses to export arms, which presumably includes accessory items such as scopes. According to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the State and Commerce Departments have some overlapping jurisdiction, depending on the type of weapon. Immigration and Customs Enforcement seems to be the lead agency on this particular action, as a part of its larger “Project Shield America” initiative.
But if illegal, third-party exports are the justification, the remedy DOJ is seeking goes far beyond the scope of the investigation. Where a warrant for an individual download abroad might have been justified, asking for all records of downloads — including domestic downloads — goes far beyond what is necessary and infringes on the people’s rights against unreasonable searches. In harassing law-abiding gun-owners for simply downloading an app, and thereby building a database of all of the app’s users, the action also threatens Second Amendment protections.
DOJ Shenanigans Are Partly Why America Exists
The authors of the Bill of Rights were familiar with this sort of government action, which is why they were clear about what kind of warrants would not be allowed. The Fourth Amendment states, “The 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.” The word “particularly” is what makes DOJ’s actions here suspect.
Before America’s independence, for centuries kings and the officials who worked for them fought for more power to snoop around in people’s homes and papers. This had been the case in England and was even more so in the American colonies in the 1760s, as the crown sought to enforce its taxation policies through the notorious Townshend Acts. Most famous as the taxation without representation that led in part to the Revolution, the means by which this policy was effected also offended the traditional principles of liberty.
The Townshend Acts gave colonial officials the authority to issue “writs of assistance,” general warrants to search for anything illegal anywhere they might find it, based only on the suspicion that the person the warrant was targeting might be smuggling or otherwise avoiding tax. The writs eviscerated the common law protections that had developed around warrants, and gave the government boundless powers to harass its enemies with no proof needed.
When the Revolution began, the founding generation remembered these abuses and wrote protections against them into their state constitutions. Maryland’s 1776 Constitution, for example, held that “all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants — to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special — are illegal, and ought not to be granted.”
After the federal Constitution was ratified, fear of the new government led to calls for a similar prohibition at the federal level. The result was the Fourth Amendment.
Push Back Against Creeping Government Power
In asking for data on everybody everywhere, DOJ has fallen well to the “general” side of the general/specific question. It is not asking for particular information about particular people based on any individualized suspicion. It wants it all, and it wants the American Technologies Network Corporation to give it away. Worse still, it doesn’t want the public to find out about the overreach until it’s too late to do anything. If not for Brewster and Forbes’ reporting, we would all still be in the dark.
Creeping government power is nothing new, but the old protections against it will wear thin without public vigilance. Legal protections of our rights do a lot, but without public understanding of those rights and constant pushback against infringement, the words will lose their power.
ATN proved to be a good corporate citizen in resisting the government’s new-fashioned writ of assistance. More companies — especially tech companies — should do likewise.