Schneier on Security

Nile • January 12, 2017 11:19 AM

The United States has a very unusual citizen’s right in the 4th Amendment: the prohibition on a ‘general warrant’.

I can see from other posts here that this is not as well understood as it needs to be.

In simple terms, the General Warrant allowed the Crown to seize everything – all your correspondence and records – and trawl through them so that a prosecutor can formulate a case: “Show me six lines written by the most virtuous man in all of France and I will find in them something to hang him is the idea, and it works.

I can assure you that a continuous record of your private conversations will provide something that can be used against you. No matter who you are or what you do; unless you are, perhaps, a Trappist monk.

This is why the wording of the 4th Amendment – and of any warrant that complies with it – is peppered with the terms ‘specific’, ‘particulars’ and ‘in connection with’: a warrant can only be raised on reasonable suspicion of a named crime, and can only seek a described set of evidence to prove or disprove these suspicions.

Yes, it gets abused: notoriously, with the subpoenas issued in divorce cases.

Likewise, continuous surveillance in the hope that something incriminating will be captured – anything, and it doesn’t matter what offence – is forbidden under this amendment.

This, too, is abused routinely in the practice of ‘parallel construction’, whereby the continuous observations of illegal mass surveillance are cherry-picked for items that an unscrupulous law enforcement officer can ‘fortuitously’ overhear by claiming to have been in the right place at the right time.

Nevertheless, US citizens have a constitutional right to be protected against this ‘unreasonable’ search and surveillance.

It’s an unusual right, and you should value it: it is clear that many don’t, and some of you work to undermine it. But it does exist and it can be defended in the courts.

This does need a determined and deliberate effort by the judiciary to throw out the idea that we can listen to everything, or read everything, in the hope that something incriminating can be discovered.

Above all, it needs to be defended by citizens – and this includes Amazon – refusing to hand over everything they’ve got in response to an overly broad warrant that does not specify the suspicion and the evidence.

What we have here, in the ‘Echo’ warrant, is an edge case: the authorities are resonably sure that a murder occurred in a room recorded by that microphone. If there had been a human witness in the house, we could ask her: “Tell us what you saw”, and the judge would rebuke any prosecutor who asked “Tell us something about the suspect that we can use to prosecute him, the villain”; but that’s not quite possible when the ‘witness’ is a microphone.

Insisting on ‘particulars’ is a fairly good protection, when it’s used; but this depends on seeking evidence from a vigilant defender of the 4th Amendment. I am certain that Law Enforcement can and will find more amenable people to ask, as more and more of these recording devices come into use.

The future of these cases is going to involve a change in legal practice – case management, not necessarily the statutes – involving a pretrial screening process for the evidence that ‘asks the witness’ for the relevant information, and a determined effort to discourage parallel construction.

Meanwhile, if you’re a citizen in a jurisdiction which does not have this peculiar protection, you’re hosed. We’re all Joe Naccio and a complete trawl of all your correspondence with find something, amidst all the conflicting demands of the law, that you were either obliged to do or forbidden to do. Or both, under much of the statute law applicable to company directors.